Mazowe Mine v Dereck Katabvu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/226/2016
HARARE, 10 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/226/2016

HARARE, 10 MARCH 2016 			     	     CASE NO. LC/H/760/13

AND 22 APRIL 2016

In the matter between:-

MAZOWE MINE					Appellant

And

DERECK KATABVU				Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr T. Tandi (Legal Practitioner)

For Respondent		Mr R.J. Gumbo (Legal Practitioner)

MURASI J:

This is an appeal from the decision of the arbitrator.  The facts in this matter are largely common cause.  Respondent was injured during his course of duties in 2010.  He sought medical attention which took a long time up until 2012.  The appellant proceeded to terminate respondent’s employment contract in terms of section 14 (4) of the Labour Act [Chapter 28:01].  Respondent took the matter to the Labour Officer and this subsequently led to arbitration.  The arbitrator found in favour of the respondent and the appellant has approached this Court on appeal.  Appellant’s grounds of appeal are as follows:

The arbitrator grossly erred in finding that the respondent had been unfairly dismissed and that the requirements of section 14 (4) of the Labour Act [Chapter 28:01] had not been met.

The arbitrator grossly erred in finding as he must have done that an enquiry had not been done, when expert reports were produced before the hearing.  The finding is outrageous in its defiance of logic that no reasonable person exercising his mind would have come to it.

The arbitrator grossly erred in finding that the contract of employment had not been lawfully terminated when it was common cause that pursuant to the termination the respondent had been paid his terminal and disability benefits which benefits he duly accepted as marking the end of his employment with appellant

At the commencement of the proceedings the Court observed that respondent’s Counsel had filed a Notice of Response the previous day way outside the prescribed period in terms of the Rules.   The Notice of Response was not accompanied by an application for condonation for late filing of the Notice of Response.  Mr Gumbo stated that this was because they had made efforts to obtain the grounds of appeal from the appellant’s Counsel and they had only received a document which did not bear the court stamp.  He further attributed the delay to the fact that the matter had previously been handled by the trade union.  As to the question why he had not bothered to attach an application for condonation for late filing of the document, he responded that it was customary to make oral applications.  Mr Tandi for the appellant submitted that the respondent’s Counsel was aware of the existence of the appeal as early as 13 January 2016.  Correspondence had been exchanged between the two practitioners.  Mr Tandi stated that in a letter dated 29 January 2016 he had informed respondent’s Counsel to file the Notice of Response within ten (10) days of receipt of the letter.  Respondent’s Counsel received the letter on 2 February 2016.  Still no Notice of Response was filed.  Respondent’s Counsel urged the Court to use its discretion and condone the late filing of the Notice of Response.

It is trite that for a Court to exercise its discretion in considering the late filing of documents, the application and reasons tendered have to be reasonable and acceptable.  The appeal was filed on 25 September 2013 and respondent’s trade union served with the Notice of appeal on 26 September 2013.  No response was filed within the prescribed period of time.  Respondent’s Counsel came in at a later stage but did not file the Notice of Response until a day before the hearing.  I have not found any cogent reasons advanced by respondent as to why no response was filed.  Respondent’s Counsel has not attached any explanation from respondent’s trade union as to why no response was filed timeously.  Respondent’s Counsel’s explanation as to why he did not file the Notice of Response at least after receiving the grounds of appeal from appellant’s Counsel is unsatisfactory.  Respondent’s Counsel does not state in his explanation that he approached the Registrar of this Court in order to obtain the requisite documents.  What I found disturbing though was respondent’s Counsel assertion that he did not file the application for condonation of late filing of the Notice of Response because it was standard practice to make oral application.  He later made the concession that it was indeed not permitted when Mr Tandi stated that in BGM vs Minister of Transport HH 12/2009, the High Court had stated that such applications had to be writing.  I am of the view that such behavior on the part of Counsel if reprehensible.  A practitioner is an officer of the Court and his first duty is to the Court.  It is also trite that discretion on the part of the Court is exercised where particularly a litigant has been candid with the Court.  It can hardly be said, in casu, that respondent falls into that category.  The Courts have time and again stated that the negligence and lack of diligence on the part of a legal practitioner can be visited on the litigant. I am of the view that this applies to this case.  The tardiness with which the matter was approached cannot be condoned.  The Court therefore declined to uplift the bar operating against the respondent.

On the merits of the case, Mr Tandi, stated that after respondent had got injured and been off duty for a considerable time, he was examined by the appellant’s Doctor.  The recommendation was that he was not fit to work and thus the contract of employment had to be terminated.  It was submitted that the procedure enshrined in section 14 (4) of the Act was followed.  Mr Tandi stated that the reports of the appellant’s Doctor were forwarded to the respondent.  It was further argued that there was substantial compliance with the statutory provisions.  It was further submitted that appellant had accommodated respondent for a period of nineteen (19) months which clearly exceeded the six (6) months provided in the statute. Mr Tandi prayed that the arbitral award be set aside.

The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.  (See Chioza vs Siziba S 4/15).  The arbitrator made the following finding:

“As has been already observed above, the applicant was on sick leave for 19 months.  The respondent was generous and accommodative of the Claimant.  However, there is no evidence to suggest that compliance was done with the above where the claimant was consulted and given an opportunity to state his case.  In view of this, what the respondent need to do is to comply with the above.”

The arbitrator referred to case law in which it had been held that there was need to consult the employee before a decision was made as an injustice would ensue in the absence of such consultation.  A reading of the record does not show that any such consultation was made.  In the arbitral award the appellant insisted that there was compliance with section 14 (4) of the Act. Mr Tandi in his submissions did not argue that the appellant had stated before the arbitrator that respondent had been consulted.  In fact, he argued that the copies of the appellant’s Doctor’s reports were given to the respondent and that respondent had obtained a medical report from Karanda Hospital to counter these medical reports from the appellant.  I should comment that the medical report from Karanda Hospital indicated that respondent was

“now able to return to work but please allow him to perform duties where he doesn’t have to carry heavy loads as this may reinjure his foot.”

Appellant argued before the arbitrator that the medical report from Karanda Hospital did not amount to a certification that respondent resumes normal duty.  Doctor Chirisa, the appellant’s resident doctor recommended early retirement.  The Ministry of Health District Therapist recommended that “Heavy weight bearing is not recommended since it will weigh down on his longitudinal arch (right foot).

I do not claim to have knowledge in medicine but a reading of the report from Karanda Hospital and that of the District Therapist show similar recommendation, that if light duty. Was it therefore not necessary to engage the respondent in light of these somewhat conflicting medical reports?  It is trite that the underlying principle in the right to be heard is that of fairness and natural justice in that each pension is given an opportunity to put his or her position before a decision is made.  This route where an employee’s contract has purportedly been terminated in terms of section 14 (4) of the Act has been travelled before. Garwe JA dealt with a similar matter in Zimasco (Private) Limited vs Maynard Farai Marikano S 6/14.  He had this to say at page 13 and 14 of the cyclostyled judgment:

“However since the decision to terminate an employment contract has far reaching consequences, one should assume that before such decision is taken the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the leave contemplated in section 14 (4) and that for that reason it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.  In my view it would not be proper for an employer to invoke the provisions of section 14 (4) of the Act and without notice to the employee proceed to terminate his contract of employment.  In short the audi alteram principle would still need to be respected and failure to do so would render any such termination null and void.”

The first ground of appeal that the arbitrator grossly erred in finding that respondent had been unfairly dismissed is clearly addressed in the judgment of Garwe JA (supra).  In the second ground of appeal, appellant alleged that medical reports were produced before the hearing. That issue is not in dispute.  The arbitrator found that with the medical reports in its possession, appellant still had to have consultations with the employee concerned and this was not done.  The third ground of appeal is similar in substance to the first ground of appeal in that it attacks the arbitrator’s finding that the contract of employment had been unlawfully terminated.  The grounds of appeal must fail.

In conclusion, the court is of the firm view that the decision of the arbitrator is unassailable.

In the result the appeal is devoid of merit and is accordingly dismissed.  The Court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of Honourable Mudzengi be and is hereby upheld.

Each party to bear its own costs.

Kantor & Immerman, appellant’s legal practitioners

Gumbo & Associates, respondent’s legal practitioners