Howard Mudzviti v Pioneer Transport (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/170/2014
HARARE, 18 & 28 MARCH 2014
CASE NO. LC/
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/170/2014

HARARE, 18 &  28  MARCH 2014		           	        CASE NO. LC/ REV/H/113/13

In the matter between:-

HOWARD  MUDZVITI						Applicant

And

PIONEER TRANSPORT (PVT) LTD				Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		-	Mr. L. Chimutashu (Organising Secretary)

For Respondent		-	Mr. C. Gumbo (Legal Officer)

MAXWELL J:

On 11 December 2013 this application for review was filed.  The grounds for review are;

Respondent grossly erred in charging applicant with theft without proof of unquantified (sic) amount and relied on speculation and being violation of S.I. 67 of 2012.

The decision to dismiss the applicant was not the decision of the disciplinary Committee being yet another violation of S.I. 67 OF 2012.

The purported record of proceeding leading to applicant’s dismissal is not a true reflection of what transpired.

Please also note that the purported informer was bribed by respondent in order to come up with his alleged report.

It is also evidently the credibility of the alleged informer and lack of proof that found even the Criminal Court acquitting the applicant of the charges.

It is further unfortunate that applicant requested for refueling in order to fully ascertain the quantity of the alleged diesel stolen as per their informer but respondent turned down that request for no reasonable ground.

The purported report by informer was not of his making but instead Mr. Chibundu.  Hence cannot be relied upon as he even disowned some of the contents thereof.

There is no reason why applicant was served with termination letter and record of proceedings on 15 November 2013 at N.E.C.T.O.I. after reference of the same matter thereto in terms of S.I. 67 of 2012.

There is no proof that the alleged informer was assaulted/insulted as was alleged.

There is also no proof that the disciplinary Committee members were invited to the deliberations meeting and turned down as alleged.

Please note that applicant was dismissed in retrospect.  Applicant was further wrongly dismissed for “willful disobedience to a lawful order” as circumstances thereto were beyond his control but that fact was not considered.

In the circumstances the dismissal was highly defective, unfair and unlawful to the worst extent hence deserves to be set aside.

Applicant prayed for the dismissal to be set aside and that he be reinstated without loss of wages and benefit effective from date of dismissal.  If reinstatement is no longer an option, applicant prayed for damages to be paid in lieu of reinstatement.

In response Respondent pointed out that the grounds of view are solely based on questions of fact and law and not procedural irregularities.  It submitted that Applicant should have proceeded through appeal proceedings.  In response to the grounds of review Respondent stated that;

The amount of fuel was quantified and verified, as such the Applicant cannot allege otherwise.

The decision to dismiss the Applicant was made by members of the Disciplinary Committee who availed themselves, after the Workers Committee representatives refused to attend in protest to another completely unrelated matter.

The rest of the grounds set out by the Applicant are meritless and were dismissed by the appellate authority of the Respondent in terms of S.I. 67/2012 and this honourable Court should not be forced to reconsider the same, as they were aptly addressed.

The application is improper and meritless and is a mere fishing expedition.  This is an abuse of the legal process, and is a case where the application should be dismissed with costs on a higher scale.

Section 89 of the Labour Act [Chapter 28:01] states functions powers and jurisdiction of Labour Court.  Subsection 1 (d1) states

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters”

Section 27 of the High Court Act [Chapter 7:06] gives the grounds for review.  These are listed as

“a) absence of jurisdiction on the part of the Court, tribunal or authority concerned;

b) interest in the cause, bias, malice or corruption on the part of the person presiding over the Court or tribunal concerned or on the part of the authority concerned, as the case may be;

c) gross irregularity in the proceedings or the decision.”

An examination of the grounds for review outlined by Applicant shows that none fits into any of the three listed in Section 27 of the High Court At [Chapter 7:06].  Applicant has asked for the remedy of reinstatement.  The relief available on review is that proceedings or the decision may be set aside or corrected.  Reinstatement is a relief that one seeks on appeal, not on review. See ZFC Ltd v Geza 1998 (1) ZLR 137.

I find merit in Respondent’s submission that Applicant should have proceeded by way of appeal.  In the circumstances I find that the matter is improperly before this court and the application is dismissed. There will be no order as to costs.