Forbes Nyemba v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/262/2013
HARARE, 17th JUNE 2013 CASE NO. LC/H/93/2012
JUDGMENT NO. LC/H/262/2013
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IN THE LABOUR COURT	OF ZIMBABWE	JUDGMENT NO. LC/H/262/2013

HARARE, 17th JUNE 2013			CASE NO. LC/H/93/2012

In the matter between:-

FORBES NYEMBA						 	-	APPELLANT

AND

CITY OF HARARE							-	RESPONDENT

Before the Honourable E. Makamure, President

For the Appellant	:	Mr L. Seremani (Trade Unionist)

For the Respondent	:	Ms A. Zvoutete (Principal Legal Officer)

MAKAMURE E.,

This is an appeal against the determination of an arbitrator.

Arbitrator was to determine:

Whether or not the employee was brought before a medical board.

Whether or not the case is now prescribed.

The arbitrator made factual findings on the basis of evidence before him that the Appellant was placed before a Board (Medical) and was advised to report for duty but that he did not do so.  Secondly, the Learned Arbitrator made a finding that the dispute [which arose some four (4) years before the matter was brought for resolution] had prescribed.

In his Heads of Arguments which he abides by, Mr Seremani for the appellant in paragraph 1.5 averred as follows:

“Due to prolonged illness the appellant could not avail himself for duty until he gained mental responsibility in February 2009 when he returned and was served with a memorandum  from Human Resources Director barring all employees who have not been reporting for duty en masse.”

In oral submissions however, Mr Seremani departed from his heads of argument and stated that the appellant resumed duty on 18 June 2007.  That is a material departure from the initial position.  This means that the appellant has embarked on a new line of argument.  A party to proceedings cannot change goal posts willy-nilly.  That is inappropriate and cannot be allowed.  This Court is a court whose purpose is to deal with parties who are serious about disputes.  The attitude of the appellant amounts to abuse of court process.  That is regrettable and should be condemned.

The initial stance adopted by the appellant in the submissions actually confirms the arbitrator’s findings i.e. that the appellant did not report for duty as advised by the Board.  This means that the finding by the Learned Arbitrator was correct.  For that reason I find that there was no error by the arbitrator.  There was no misdirection as to law.  Consequently, I find that there is no merit in the appeal.  The appeal fails.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Harare Municipal Workers Union, Representatives for the Appellant

City of Harare Legal Division, Representatives for the Respondent