FBC Bank Limited v Dumisani Nkomo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/263/13
HELD AT HARARE 12TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/263/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/263/13

HELD AT HARARE 12TH JUNE 2013		       CASE NO LC/H/498/11

FBC BANK LIMITED				Appellant

DUMISANI NKOMO				Respondent

Before The Honourable G Musariri, President

For Appellant		Mr A.K. Maguchu, Attorney

For Respondent		Mr P.G. Mutasa, Unionist

MUSARIRI, G:

Appellant grounds of appeal are two-fold.  They read as follows,

“1.	The arbitrator erred grossly on the facts and at law by finding that the Appellant had the onus of proving on which date Respondent was served with the appeal hearing decision.

2.	The arbitrator erred grossly on the facts and at law by making an uncorroborated allegation that an employee always has an interest to protect his employer’s case and finding that whatever the employee then says as a witness is false.”

The critical issue in casu is whether Respondent filed his appeal (against his dismissal) timeously to a Labour Officer.  The matter is governed by the provisions of the Labour (National Employment Code of Conduct) Regulations S.I. 15/06 (hereafter called the Code).  Section 8 (6) of the Code provides that,

“(6)	A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals

Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.”  (The underlining for emphasis is mine.)

The dispute centers on the following:

Appellant claimed that it served the appeal decision on Respondent on 15th April 2010.

Respondent averred that he received the decision on  28th April 2010.

Respondent referred the matter to the Labour Officer on 6th May 2010.

Going by Appellant’s case, referral to the Labour Officer was out of time  by close on 2 weeks.  According to Respondent’s case the referral was within the seven working days’ limit provided by the Code.  The Honourable Arbitrator found that Appellant

“failed to establish that the outcome was delivered on Claimant, on 15th April 2010.  It has not discharged the onus of proof.  I am inclined to concur with Claimant position that delivery was effected on 28 April 2010. That being the case, Claimant was not out of time by lodging its appeal on 6 May 2010.  This was within the seven (7) day time-limit prescribed by the law.”

(The underlining for emphasis is mine.)

1 agree with the Arbitrator.  He correctly noted that the onus lay on Appellant to prove the date of delivery.  Appellant claimed it delivered the appeal decision on date X.  Therefore it argued that the referral was out of time.  It is trite law that he who alleges must prove.  What evidence did Appellant tender to prove delivery.  It relied on e-mail exchanges between Mr Israel Murefu and Mr Godfrey Tarunga.  The exchanges took place on 10th May 2010.  Murefu first asks the date on which the decision was “handed over” to Respondent.  Tarunga’s cryptic response was “15/04/2010”.  That was the sole evidence relied upon by Appellant.  Thus the proof is the word of Tarunga.  It is hearsay to the extent that Tarunga did not attend arbitration proceedings.  It does not give details of where and how the decision was delivered.  Tarunga was not availed for cross-examination.  Thus his cryptic word (or is it date) remained untested by cross-examination.  As against this one expects critical communications in banks to be accompanied by proof delivery.  Thus one would expect to see the recipient’s signature or stamp on a duplicate copy or in a delivery book.  Such proof should date contemporaneously with the delivery. All this is absent in this case.  The proof is dated close on 3 weeks after the alleged delivery.  Rather suspiciously it comes only after Respondent had referred the matter to a Labour Officer.  Faced with the same circumstances I would have discredited the proof tendered by Appellant.  That the Arbitrator found that Tarunga had an interest in the matter is really immaterial.  Appellant had the onus to prove delivery.  It failed to do so.  Period.  That was the end of the matter.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT