Innocent Muluswela v Coca Cola Central Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/246/2016
HARARE, 11 MARCH 2016 &
13 MAY 2016
CASE NO LC/H.APP/456/2015
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/246/2016

HARARE, 11 MARCH 2016 &			        CASE NO LC/H.APP/456/2015

13 MAY 2016

In the matter between

INNOCENT MULUSWELA						APPLICANT

Versus

COCA COLA CENTRAL AFRICA					RESPONDENT

Before the Honourable D L Hove J

For the Applicant      B M Bhala (Legal Practitioner)

For the Respondent   S Sadomba (Legal Practitioner)

HOVE J:

This is an application for condonation. The applicant seeks to be allowed to file out of time a dual review and appeal against the decision to dismiss the applicant from employment.

The record shows that the employer sought to discipline its employee, the appellant, in terms of its Code of Business Conduct.

The respondent is a Multi-National Company and has the Code of Business conduct which applies to all its employees in different countries. The applicant who was employed as the respondent’s quality environmental and safety manager objected to the use of that particular instrument and declared a dispute which was referred to a Labour Officer and to an arbitrator. The arbitrator held in favour of the applicant. The parties agreed that the matter be remitted for a hearing de novo since the employer had used the Code of Business Conduct which although applicable to all employees of the employer, it was not registered in Zimbabwe. In trying to amend the irregularity and using the national code of conduct S I 15/2006 the employer ended up giving the applicant a very short notice in that he was advised of the change on the date of hearing.

The arbitrator remitted the matter and the employer proceeded in terms of S I 15/2006 and found the applicant guilty and dismissed him. The applicant is now seeking to challenge by way of both an appeal and a review the new proceedings. He is however out of time and seeks condonation.

At the commencement of these proceedings, the applicant argued in limine that the employer’s heads of arguments were out of time and the employer is barred.

The employer submitted that there had been an understanding between the parties that they would not raise this procedural issue as the parties were seeking to engage each other in pursuit of a possible out of court settlement. The employer’s representative sought the court’s indulgence and asked the court to exercise its discretion in terms of Rule 26 of the labour Court Rules, 2006 (SI 59/06).

That rule allows the court to condone a departure from the rules where the court is satisfied that the departure is required in the interests of justice, fairness and equity. I m in this case of the opinion that it is only just and fair to condone the failure to comply with the rules to facilitate the expeditious resolution of this dispute as the court is mandated to do in terms of section 2A of the Labour Act [Chapter 28:01] (the Labour Act).

The failure to file the heads in time will not in anyway, and has not been shown, to cause the applicant any prejudice. The heads will also assist the court to properly consider the issues for the above reasons; the failure to comply is condoned.

The applicant is seeking that he be condoned to allow it to approach this court to make a dual appeal and review application. There is no procedure that allows the filling of a dual application/appeal before the court. One has either to file an appeal or an application for review before the court as the rules of court provide separately for the filing of an appeal and also for the filing of an application for review.

Secondly an appeal from proceeding held in terms of The Labour (National Employment Code of Conduct) Regulations, S I 15 of 2006 are not directed to the labour Court. They are directed to a Labour Officer. The Regulation themselves provide for an appeal procedure in section 8 (6) they state as follows:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or an appeals authority as the case maybe may refer the case to a Labour Officer or an Employment Council agent, as the case maybe, within (7) working days of receipt of such a decision.”

When the employer wrote to the applicant, the dismissal letter advised of this appeal procedure, the letter stated that:

“… further to the above please note that should you be aggrieved by the above, you are at liberty to direct the matter to a labour officer within seven (7) days from the date of this letter.”

It is therefore clear that approaching, or attempting to approach the Labour Court with this appeal is contrary to the provision of the SI 15/2006. The applicant was directed and advised of the correct procedure in the dismissal letter and ought to have followed the proper procedure.

The applicant argues that the appeal he intends to make is in terms of section 92 D of the Labour Act. The section provides as follows:

“A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.

The appeal is however not against a determination made under an employment Code. An ‘employment code’ is defined as:

“an employment code of conduct registered in terms of section one hundred and one”.

Statutory Instrument 15/2006 is not an employment Code it was not registered in terms of section 101 of the Labour Act. The appeal can therefore not be brought in terms of section 92 D of the Act.

The argument that there had been attempts to use the Coca Cola employment Code i.e. the Code of business conduct was shot down by the applicant himself and an arbitrator agreed with him and set aside the proceedings that had been in terms of that employment code.

In the result, the court finds that no useful purpose would be served by condoning the applicant’s failure to comply with the rules of this court thereby allowing him to file an appeal/review before this court when the appeal does not, in terms of law, lie to this court.

Further the fact that the Labour Court can consolidate an appeal and a review to be heard as one matter is just that. It is not that a party can combine the two and approach the court in a combined fashion. It is the consolidation of an appeal properly noted and a review properly filed for purposes of hearing the two as one.

I accordingly am unable to find favour with the applicant’s submissions.

The following order is made:

The application is dismissed.

There is no order as to costs.

Mundia & Mudhara, applicant’s legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners