City of Harare v P.M. Sachiti

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/27/13
HELD AT HARARE ON 30 JANUARY 2013
CASE NO.
JUDGMENT LC/H/27/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/27/13

HELD AT HARARE ON 30 JANUARY 2013		CASE NO. LC/H/750/11

In the matter between:

CITY OF HARARE						Appellant

And

P.M. SACHITI						Respondent

Before the Honourable President, E.F. Ndewere

For Appellant	Ms A. Zvoutete (Legal Officer for City of Harare)

For Respondent	Mr L. Seremani (Legal Officer for the Workers’ Union)

NDEWERE E.F

The Appellant was the Respondent’s employer.  On 5 April, 2006, the Appellant dismissed the Respondent from employment following a disciplinary hearing for absence from duty without reasonable cause.  The Appellant says the Respondent did not appeal against the decision; he left employment as a result of the dismissal and resurfaced in February, 2011 when he referred his case to the designated agent for the Employment Council for the Harare Municipal undertaking on 4 February, 2011, alleging unfair labour practice.  The Appellant immediately raised prescription as a defence in terms of Section 94 of the Labour Act [Chapter] 28:01 which states that a case should be raised with a Labour officer within two years from the date the dispute or unfair labour practice first arose.  Conciliation failed and the matter was referred to arbitration and on 3 November, 2011, the Arbitrator ruled that the case had not prescribed.  The present case is an appeal against that award.

The Respondent submitted that the case had not prescribed because he had appealed and his appeal had interrupted prescription.  He alleged that following his dismissal on 5 April, 2006, he noted an appeal on 7 April, 2006 by writing a letter to his Head of Department, Annexure C, asking him to consider his appeal. He said he had been following up his appeal, making enquiries about the progress since 2006 to 4 February, 2011.

On analysis, the Court observed that Annexure C is a photocopy of the alleged letter to the Head of Department and even the date stamp on the letter is a photocopy.  During the hearing, an attempt was made, by consent, to check if the original letter was in the Respondent’s personal file which the Appellant’s representative had brought to Court.  The search yielded nothing; the original letter was not in the file.  What was contained in the file was another loose photocopy of the alleged letter, with a photocopied date stamp as well, thus raising suspicion about the authenticity of the letter of 7 April, 2006 in view of the Appellant’s assertion that Respondent never appealed.  If the copy was genuine, at least the date stamp should have been an original date stamp, not a photocopy.

The Court asked for other independent corroborative evidence from the Respondent to prove that indeed he had written a letter of appeal to his Head of Department.  The Respondent said he had no evidence to corroborate the fact that he had written the 7 April, 2006 letter to his Head and he also had no evidence to corroborate the fact that he had been following up his case since 2006 to 4 February, 2011.

Even if the Court was to give the Respondent the benefit of the doubt and accept that he wrote to his Head of Department on 7 April, 2006 the case still remains prescribed in terms of Section 94 of the Labour Act because a period of about 5 years lapsed before the Respondent raised allegations of unfair labour practice.

As correctly submitted by the Appellant’s representative, interruption of prescription is only through valid court process served on the other party Apotex Incorporated vs Surgined (Pvt) Ltd SC 100/2002.  In the present case there is no evidence of any service of a valid document whereby legal proceedings are commenced.  The Respondent sought to argue that the unfair labour practice continued up to 4 February, 2011, but in the absence of proof that the NEC received an appeal and that thereafter; the Respondent kept on checking the progress such an argument cannot succeed.

The Arbitrator’s award itself does not clarify the matter any further.  The award says

“Therefore prescription was interrupted the date the claimant reported the matter to the National Employment Council……”

The Arbitrator does not mention the date he is referring to but whether the date is 7 April, 2006 or 4 February, 2011, the case remains prescribed.

The appeal is accordingly allowed and the Arbitrator’s award of 3 November is set aside.

There is no order on costs.

E.F. NDEWERE

PRESIDENT

A.  Utete (City of Harare-Legal Division)			Appellant’s Representative

L. Seremani (Harare Municipal Workers’ Union)		Respondent’s  Representative