Judah Nyakonda v Greif Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/271/2013
HARARE, 19 JUNE 2013
CASE NO. LC/H/436/2012
JUDGMENT NO.LC/H/271/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/271/2013

HARARE, 19 JUNE 2013			          CASE NO. LC/H/436/2012

In the matter between

JUDAH NYAKONDA			-			Appellant

And

GREIF ZIMBABWE			-			Respondent

Before The Honourable President - B.T. Chivizhe

Appellant 		-	Mr J. Nyakonda (In Person)

Respondent		-	Mr K. Ncube (Legal Practitioner)

Gill, Godlonton and Gerrans

CHIVIZHE, B.T.:

The Appellant was employed by the Respondent as Maintenance Clerk.  He was arraigned before a disciplinary authority on 29th of January, 2008 facing two offences under the relevant Code viz.  Offence 4: Refusing duty or legitimate order (means deliberate failure to follow legitimate order.)  Offence 13:	Neglect of duty or responsibility (means carelessly and intentionally ignoring one’s duty or responsibility).

The allegations were that in his capacity as Maintenance Clerk he had failed to ensure safe custody of workshop tools and equipment.  As a result two items an industrial drilling machine and a grinder had disappeared from workshop stores in unclear circumstances.  The Appellant was found guilty on the charges.  As he was sitting on a final warning for a similar offence the employer then imposed a dismissal penalty.  Aggrieved the Appellant lodged an appeal with the relevant authority.

An appeal hearing was then convened on 29th of February, 2008.  After the hearing a penalty of another final warning was imposed to make them two final warnings.  On 3rd March, 2008 the Respondent then advised the Appellant of the termination of his employment.  He was advised of his right of appeal to the Works Council.

The Appellant between 2008 and 2010 lodged a complainant with the Labour Officer for conciliation.  The exact date of filing is the subject of dispute between the parties.  The Appellant alleges it was sometime after his contract had terminated.  He however has placed no documents to support this claim.  The record shows however the date of reference to conciliating authority was 6 December, 2010.  When conciliation failed the matter was referred to compulsory arbitration.  The terms of reference were to determine whether or not Mr Judah Nyakonda was unfairly dismissed.  In his award handed down on 25 January, 2012 the Arbitrator found that the Appellant’s claim had prescribed having being filed 4 years later.  He therefore upheld the dismissal penalty imposed by the employer.

The Appellant noted the present appeal against the arbitral award.  The appeal has been noted on the following grounds;

The learned Arbitrator erred by failing to appreciate that the matter had not prescribed as three years had not lapsed.

The learned Arbitrator had within time noted an appeal with NEC which failed to prosecute the matter within time but the Appellant went to resubmit the matter.

The learned Arbitrator failed to appreciate that the Appellant’s dismissal was unlawful.

In his prayer the Appellant is asking the court to grant

(a) an order setting aside the decision of the Arbitrator

(b) an order for reinstatement without loss of salary and benefits or in the alternative the Respondent pay him damages in lieu of reinstatement.

The Respondent has raised a point in limine that the appeal as noted does not raise a question of law as required under Section 98 (10) of the Labour Act [Chapter 28:01].  I am satisfied to the extent that the Appellant in his appeal alleges a gross misdirection on the facts by the Arbitrator as to amount to misdirection in law that the appeal is properly before the court.

The Appellant in his appeal challenges the Arbitrator’s finding that the matter had prescribed when it was placed before him.  The Appellant alleges that he filed a complaint with NEC in the relevant industry in 2008.  He had then made a follow up in 2010 and re submitted another complaint.  The Respondent’s position is that he Appellant after termination failed to note an appeal with Works Council.  The matter had surfaced at the Arbitrator after four years resulting in the Arbitrator dismissing the matter on the basis that the matter had prescribed.  The Arbitrator in his findings dismissed Appellant’s submissions on the basis that there was no supporting document to prove that Appellant had indeed reported the matter to the NEC.

Section 94 of the Labour Act, [Chapter 28:01] provides for prescription of two years from the date when the dispute or unfair labour practice arose.  The appellant was dismissed on 3 March 2008.  The record shows clearly in folio 37 that the matter which was set down for conciliation for hearing on 3 March, 2011 had been referred on 6 December, 2010.  Appellant’s complaint was therefore made on or around 6 December, 2010 according to the documents in the record.  Clearly the complaint was lodged out of time.  Whilst the Arbitrator was correct in concluding that the claim was prescribed he erred however in stating the period of delay was four years it was actually a period of about nine months.  The Appellant first ground of appeal clearly cannot stand and ought to be dismissed.

The second ground of appeal which follows on the first ground of appeal must also fail.  The Appellant failed to file any documentary proof of his filing of complaint before 3 March, 2010.  The ground is consequently also dismissed.

The last ground touches on the merits of the matter.  The Appellant alleges that the Arbitrator failed to appreciate that his dismissal was unlawful.  The Arbitrator dismissed the Appellant’s case on the basis of a technicality that the matter had prescribed.  Having dismissed it on a technicality he was not bound to proceed to consider the merits of the matter.  In the same vein this court having also reached same conclusion as the Arbitrator has no business in delving into the merits as at this stage.  The court’s finding is that the Arbitrator was correct when he concluded that the claim having been filed out of time was improperly before him and dismissed it.

The appeal is accordingly dismissed with no order as to costs.