Francis Madyirapanze v Bindura Nickel Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/741/2016
HARARE, 1 NOVEMBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/741/2016

HARARE, 1 NOVEMBER 2016			           CASE NO. LC/H/795/14

AND 18 NOVEMBER 2016

In the matter between:-

FRANCIS MADYIRAPANZE					Appellant

And

BINDURA NICKEL CORPORATION				Respondent

Before Honourable L. Kudya, Judge

(IN CHAMBERS)

KUDYA, J:

On 11 September 2014 the appellant noted an appeal against the arbitrator’s decision in a labour dispute which pitted him and the respondent employer.  On 8 October 2014 respondent filed its notice of response to the appeal.   Since then nothing happened to the matter despite the fact that as per the papers filed of record both parties were legally represented.  No heads of argument were filed neither was the matter set down for hearing on the merits.  The conclusion drawn from the history of the matter is that appellant has abandoned his case.

It is in the light of such abandonment that this court has decided to invoke Section 89 (2) (a) of the Labour Act which empowers it to decide the appeal based on the papers filed of record.  This judgment was therefore written within that spirit.

The background to the matter is that the appellant found himself before an arbitrator after he had been involved in a labour dispute with his employer.  At arbitration he sought the arbitrator’s audience on the internal appeal which he had purportedly filed out of time at his workplace.  His employer contented that after indicating that he wanted to appeal he then went on to write some statement apologising about the subject matter and that had given birth to the final warning which he was appealing against.  The arbitrator ruled that indeed the employee had flouted the appeal rules by not filing his appeal on time.  To that end the arbitrator could not hear him since he had not exhausted his domestic remedies.

The critical question to be decided here is whether the arbitrator was right to find as he did. A reading of the record of the exchanges between the parties and what happened at the workplace shows that when the employee admitted to the charges raised against him he also proffered a defence to part of them but was nevertheless found guilty and was penalised by the final written warning.  All things being equal it was imperative that the employee seeks resourse through the available appeal channels.

It appears he did not do so citing absence of the record and reasons for the warning.  Whilst it is conceded that the record is critical for one to note one’s appeal absence of same cannot be fatal to noting of the same.  Since the employee was out of time his remedy lay in seeking condonation first and laying out the delayed record arguments which he sought to present before the arbitrator.  The court is therefore not persuaded that arbitrator erred to rule that the employee had to exhaust domestic remedies first.  To that end the appeal being without merit should fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed.

Each party to bear own costs.