Falcon Security v John Marongere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/724/13
HELD AT HARARE ON 25TH NOVEMBER, 2013
CASE NO. LC/H/630/10
AND 20TH DECEMBER, 2013
JUDGMENT NO. LC/H/724/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/724/13

HELD AT HARARE ON 25TH NOVEMBER, 2013   CASE NO. LC/H/630/10

AND 20TH DECEMBER, 2013

In the matter between:-

FALCON SECURITY							Appellant

And

JOHN MARONGERE							Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. L. Zinyengere (Legal Practitioner)

For Respondent:	Mr. T. Mahaso (Legal Officer, ZISEGU)

MHURI J.:

By a letter dated the 5th June, 2009, Appellant terminated Respondent’s contract of employment.

In terms of clause 7 of the national Employment Council for Commercial Sectors (NECCS) Code of Conduct (Security Sector) an appeal against the employer’s decision must be filed with the Local Joint Committee (LJC) within 7 days.  The clause is peremptory.

In casu, Respondent filed his appeal with the LJC on the 2nd November, 2009.  This is common cause.  This was almost five months out of time.  Despite the appeal having been noted out of time and no application for condonation having been filed and granted, the LJC however proceeded to hear and determine the appeal.  This forms the basis of this appeal.  Appellant concedes that this issue was not raised before the LJC nor the Negotiating Committee (NC) for determination but however avers which averment is accepted by Respondent that a point of law can be raised at any time.  Appellant submitted that as such the point is properly before this court for consideration.

It is a settled principle of the law that a point of law can be raised at any time for as long as it does not prejudice the other party and it is raised in the pleadings

COLE V UNION GOVERNMENT 1910 AD 263

“…and the mere fact that a point of law brought to the Court’s notice was not taken at an earlier stage is not in itself a sufficient reason for refusing to give effect to it.

The issue is covered in the amended grounds of appeal which were served on the respondent by Appellant.  To that end, the issue is properly before this court for consideration.

A code of conduct is a product of negotiation and agreement between the parties.  Upon its registration with the Ministry of Public Service Labour and Social Welfare, it becomes binding on the parties.

Smith J (as he then was) had this to say, in the case of:-

KING MOTTON MLAMBO V GMB HC H 45/95

“…it is advisable that employers comply with the requirement of any Code of Conduct that they have adopted.  If they fail to do so there is always a possibility that any action taken without proper compliance of the Code will be set aside.”

Even though these sentiments were directed at employers they apply to employees mutatis mutandis with equal force.

See also the case of

SCOTFIN LTD V MTETWA 2001(1) ZLR (H)

wherein it was stated:-

“where time periods are provided for in a statute or legislation, it is intended to ensure the expeditious resolution of matters and therefore the principal litigant must prosecute its case with due expedition.”

In casu, as alluded to earlier, Respondent did not file his appeal with expedition as required by the provisions of the Code.  There was such an unexplained inordinate delay (5 months) which was not condoned by the LJC.  In view of this I find therefore that the LJC erred in entertaining the appeal as there was legally no appeal before it.

FORESTRY COMMISSION V MOYO 1997 (1) ZLR 254 (S)

That being the case, the proceedings before both the LJC and the NC are a nullity and cannot be allowed to stand.  Consequently, I find it unnecessary to proceed to deal with Appellant’s other ground of appeal, to wit that both the LJC and the NC erred in deciding on an issue that was not placed before them.  I however mention that it is a settled principle that a Court should not mero motu make a finding on a matter not raised nor argued before it.

PROTON BAKERY PVT LTD V MIKE TAKAENDESA SC 126/2004.

In the result, the appeal is allowed and both the LJC and the NC’s decision be and are hereby quashed.

Mutumbwa Mugare and Partners–Appellant’s Legal Practitioners

ZISEGU–Respondent’s Representatives