Lovemore Samungure v Norwegian People’s Aid & Anor

### Preamble
LC/H/144/25
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/144/25
HELD AT HARARE 20 MARCH 2025
CASE NO. LC/H/57/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/144/25

HELD AT HARARE 20 MARCH 2025	CASE NO. LC/H/57/25 AND 7 APRIL 2025

IN THE MATTER BETWEEN:-

LOVEMORE SAMUNGURE	APPLICANT AND

NORWEGIAN PEOPLE’S AID	FIRST RESPONDENT

FILIPE ATKINS N.O	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Applicant	Mr. A.T Nhidza

For the First and Second Respondent	Mr. Kandiri

MURASI J.,

This is an application for review against the disciplinary proceedings conducted by the 2nd Respondent on the 13th and the 16th of December 2024. The application is brought in terms of section 92 EE of the Labour Act [Chapter 28:01]

THE FACTS

The applicant was employed by the first respondent as a Transport Logistics Officer. He was placed on suspension without pay and benefits on the 29th of November 2024, following allegations of misconduct. He was subsequently charged for contravening section 4 (a) and (f) of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (“The Code”), that is, conduct inconsistent with the fulfilment of the implied and express terms and conditions of one’s contract of employment and gross incompetency or inefficiency. On the 9th of December 2024, the applicant

was served with a notice to attend a disciplinary hearing. The hearing was held on the 13th and 16th of December 2024 and the applicant was found guilty of the charges he was facing. He was subsequently dismissed with effect from the date of suspension. Dissatisfied with this outcome, the applicant has approached this Court for relief.

PRELIMINARY ISSUES

At the outset of these proceedings, Mr. Tandiri, counsel for the respondents, raised four preliminary points. It was argued on behalf of the respondents firstly, that the applicant is barred due to the late filing of its Heads of Argument. It was submitted in this regard that the applicant only filed its Heads of Argument on the 25th of February 2025, a day after the dies induciae had lapsed. It was further submitted that the registrar had written a letter to the applicant informing him that the matter had been deemed abandoned consequent to the belated filing. The counsel argued that there was no proof on the record to suggest that the registrar’s letter had been revoked or set aside.

Secondly, Mr. Tandiri advanced the argument that the applicant failed to exhaust the available internal remedies prior to seeking recourse from this Court. It was submitted that, in consequence, the present application was prematurely brought before this Court, as its filing preceded that of the internal appeal. It was further argued that in terms of section 8(3) of the Code, the applicant was mandated to first appeal to the appeals officer and then to the Labour Officer before approaching the Labour Court. Mr. Tandiri further submitted that the appeal provided for in the Code was an appeal in the wider sense, which can incorporate both grounds of appeal and review.

The third preliminary point was that the matter has been overtaken by events as a decision has already been handed down in the internal appeal before the Appeals Officer. It was submitted that the decision of the disciplinary committee was upheld by the Appeals officer and if this Court proceeds to determine this matter, it may result in dissenting determinations.

The fourth point was to the effect that the relief being sought by the applicant is incompetent. It was submitted that the relief does not seek an order nullifying the whole proceedings but rather focuses on the setting aside of the determination of the 19th of December 2024, which is the penalty. It was further submitted that this relief cannot be granted in the circumstances as the applicant would remain convicted. Further, it was argued that if the dismissal is set aside, the applicant would revert to the status quo ante, which is being suspended. It was also argued that the relief of

reinstatement and damages was incompetent due to the fact that the applicant’s fixed-term contract had lapsed in December 2024.

Per contra, Mr. Nhidza argued that the registrar’s decision to deem the applicant barred was mistaken, as the letter was authored prior to the expiry of the dies induciae. He further submitted that the applicant’s representatives had written a letter to the registrar, alerting her of the mistake, and pursuant to that, the registrar had accepted the applicant’s Heads of argument and stamped them. Regarding the second point, Mr. Nhidza contended that the internal appellate body lacked review powers and that section 92EE of the Labour Act conferred review powers exclusively on the Labour Court. The gist of this argument was that if the lawmaker had intended to confer review powers on the internal appellate body, it would have done so in express terms as it does in the case of appeals. In addressing the third point, Mr. Nhidza stated that the internal appeal decision did not affect the current proceedings, as it was based on district grounds which had been couched on questions of law. Lastly, Mr. Nhidza argued that the applicant was challenging the entirety of the proceedings, not merely the penalty, and that the conviction was also being contested. He further submitted that the respondents’ argument that the applicant could not be reinstated in light of the expiry of his fixed-term contract was without merit. He averred that had the disciplinary proceedings never been instituted, the applicant’s contract would have been renewed. Mr. Nhidza added that the applicant’s prayer had been couched for purposes of enabling the order of the Court in the event that the respondent refused to comply with the order to conduct the proceedings de novo.

RULING ON PRELIMINARY POINTS

After careful consideration of the preliminary points raised in this matter, I have elected to address the fourth one, which, in my view, is dispositive of the matter. It is my considered view that the first three points, while noteworthy, do not warrant extensive consideration in this instance, as I do not find them to be dispositive of the matter. I will, therefore, turn to the fourth point, which, for the reason I have stated earlier merits careful examination. I find it pertinent for the purposes of this analysis to reproduce the applicant’s prayer. Verbatim, the prayer reads as follows:

“1. The application for review of 2nd Respondent held disciplinary proceedings culminating into a determination dated 19 December 2024, be and is hereby granted.

2nd respondent’s determination dated 19 December, be and are hereby set aside.

Pending investigations into the allegations complained of, 1st respondent be and is hereby ordered to reinstate applicant without loss of status, wages and benefits.

In the event that, the outcome of the investigation warrants a disciplinary hearing against the applicant, the 1st respondent shall appoint a different disciplinary authority to conduct the disciplinary proceedings de novo.

If reinstatement is no longer tenable, 1st respondent shall pay the applicant damages in lieu of reinstatement to be agreed upon by the parties, or to be quantified by this Court if no such agreement is achieved.

1st respondent be and is hereby ordered to pay the applicant’s wasted costs of this suit.”

The respondents contend that the relief sought in the above prayer is defective for a number of reasons. Firstly, it was argued that the applicant only challenges the penalty imposed, not the verdict of conviction. The crux of this argument was that, even if the decision of the 19th of December 2024 is to be set aside, the applicant would remain convicted. Secondly, it was contended that the applicant’s prayer for reinstatement and damages in lieu of reinstatement is inconsistent with the prayer for an order setting aside the disciplinary proceedings. I find this argument to be particularly compelling. The applicant’s prayer seeks to challenge the disciplinary proceedings in their entirety, yet simultaneously requests reinstatement and damages in lieu of reinstatement. This creates an inherent contradiction. If the disciplinary proceedings are set aside, the finding of guilt and subsequent dismissal would also be nullified, effectively reinstating the applicant’s employee status, albeit on suspension. If the applicant reverts to being an employee, the remedy for damages falls away.

In the case of United Bottlers v Kaduya 2006 (2) ZLR 150 (S), the Court held as follows:

“A suspended employee does not lose employment simply because he or she is suspended. He or she remains employed and can be called upon any time by the employer to perform work…”

The concept was further explored in the case of Chegutu Municipality v Manyora 1996(1) ZLR 262 (S), wherein the Court articulated the following:

“Where an order of reinstatement is accompanied by an option to pay damages in lieu of reinstatement it means that there has been a determination by the tribunal that the employee had been unfairly dismissed.”

Further, in the case of Cimas Medical Aid Society v Nyandoro SC 6-16, it was stated as follows:

“In the case of the respondent he had been suspended. He was not dismissed. There had been no termination of the relationship of employment between the parties. Reinstatement to the job would have the limited meaning of removal of the suspension so that the employee could resume work. There cannot be a question of payment of damages in lieu of reinstatement. The ordinary meaning of reinstatement is the restoration of a person in his or her former job with no loss of salary and benefits.”

The above case authorities emphasize that damages in lieu of reinstatement are only applicable in instances where there is an effective dismissal. The applicant’s prayer seeks both the setting aside of the dismissal through an order directing that the proceedings be conducted de novo and compensation for such dismissal, which is patently contradictory. In the case of John v Delta Beverages Limited SC 40-17 at p. 3, the Court held as follows:

“It has been emphasized in several judgments of this Court that that prayer in the notice of appeal must be exact in nature…”

As established in the above case, it is axiomatic that the prayer in the Notice of Appeal or Review must be exact, clear and unambiguous in informing the court of the relief sought. Regrettably, the applicant’s prayer, in casu, falls short of this requirement. This finding renders the prayer in the notice of review and the draft order defective. It is well established in precedent that a defective notice of appeal is incurable. This position applies with equal force to reviews. Consequently, the present application ought to be struck off the roll.

DISPOSITION

In the result, the Court makes the following order.

The application for review is hereby struck off the roll by reason of a defective prayer in the notice of review.

The applicant to meet the respondents’ costs.

Zimbabwe Federation of Trade Unions- Applicant’s Legal Practitioners

Tandiri Law Chambers- Respondents’ legal practitioners.