Godfrey Chikosha v Haggie Rand Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/187/14
HELD AT HARARE 15TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/187/14

HELD AT HARARE 15TH NOVEMBER 2013		CASE NO LC/MC/56/13

& 28TH MARCH 2014

GODFREY CHIKOSHA					Appellant

HAGGIE RAND ZIMBABWE				Respondent

(PRIVATE) LIMITED

Before The Honourable G. Musariri, Judge

For Appellant		Mr V Mazhetese, Attorney

For Respondent		Mr A Muchandiona, Attorney

MUSARIRI, G:

Appellant’s grounds of appeal complained that,

“1.  	The National Employment Council Negotiating Committee erred in failing to appreciate that the Respondent’s disciplinary process was flawed as it negated and breached the principles of natural justice by inter alia; …

2.  	 Even assuming but not admitting that the disciplinary process was properly conducted the NEC’s Negotiating Committee (“NEC”) erred and seriously misdirected itself when it failed to address and concede the fact that Appellant had been reinstated on 17 May 2012 and accordingly was entitled to his back pay.

3.  	Appellant was not allowed to address in mitigation before the decision was imposed.

4.	The NEC also erred when it entertained and addressed issues that had not been dealt with during the purported hearing in that it strangely and erroneously and without even stating its basis accused the Appellant of mixing goods bought by customers with Respondent’s stock which Respondent claimed resulted in it missing stock worth over US$63 765.00.

5.	The improper decision to dismiss Appellant from his employment is predicated on Respondent’s allegations that Appellant committed an act of dishonesty which is not even particularised or explained, the alleged facts upon which Respondent relies on to allege such do not even suggest acts of dishonesty.

6.	The NEC erred when it failed to appreciate that Appellant had been unlawfully dismissed.”

The bulk of these grounds deal with Respondent’s alleged failures to comply with the relevant Employment Code.  These include provisions to do with adequate notice, clarity of charges and composition of the disciplinary panel.  They also deal with denial of opportunity to address the panel in mitigation of sentence.  All these are matters of procedure which should be brought before this Court by way of review.  Some attorneys continue to raise such matters by way of appeal.  They need to appreciate that the position changed with the promulgation of section 89 (d1) of the Labour Act [Chapter 28:01].  It gave the Court the same powers of review as would be exercisable by the High Court in labour matters.  Therefore it is improper to seek a review through an appeal as Appellant sought to do.  There is skimpy or indirect reference to the merits in Appellant’s grounds of appeal.  However such references were abandoned and omitted in Appellant’s Heads of Argument.  Thus the matter was argued as though it was a review rather than an appeal.  As I have indicated above, that was a misguided approach.  Review grounds cannot be entertained under the guise of an appeal.  Thus the appeal fails on account of its fallacious facade.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E