Munyaradzi Hove v Zimphos (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/749/2014
HARARE, 09 SEPTEMBER 2014
CASE NO. LC/H/749/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/749/2014

HARARE, 09 SEPTEMBER 2014  		     CASE NO. LC/APP/H/203/14

AND 07 NOVEMBER 2014

In the matter between:-

MUNYARADZI HOVE						Applicant

AND

ZIMPHOS (PVT) LTD						Respondent

Before Honourables Muzofa, J

Manyangadze, J

Applicant			In person

For Respondent		Mr. E. T. Moyo (Legal Practitioner)

MANYANGADZE, J:

This is an application for condonation for the late noting of an application for leave to appeal to the Supreme Court.

The brief background to the matter is that the applicant was dismissed from employment on 17 July 2012, after the Respondent’s Grievance and Disciplinary Committee found him guilty of misconduct.  An internal appeal to the General Manager was dismissed.  An appeal to the National Employment Council Appeals Committee was also dismissed.

In a judgment handed down on 31 January 2014, this court dismissed applicant’s appeal against the decision of the National Employment Council Appeals Committee.

Applicant now seeks condonation to file an application for leave to appeal to the Supreme Court out of time.  In terms of Rule 36 of the Labour Court Rules, Statutory Instrument 59 of 2006, applicant was supposed to file his application for leave to appeal within thirty days from the date of the court’s judgment.

Judgment was handed down on 31 January 2014.  The present application was filed on 6 June 2014.

The requirements for an application of this nature were clearly set out in Kodzwa vs Secretary for Health & ANOR 1999 (1) ZLR 313 and Mazvimbakupa vs City of Harare HH-92-05.

The factors considered include;

The degree of non-compliance.

The explanation for it.

The prospects of success on the merits.

Importance of the case.

Avoidance of unnecessary delay in the administration of justice.

On the degree of non-compliance, the Court is looking at a delay of about two months.  This delay, though undesirable, is not inordinate.  There are cases where the delays run into several months.

In explaining the delay, the applicant said he fell seriously ill in early February 2011.  This was around the time he learnt about the unfavourable judgment.  It then fell upon his wife to advise the applicant’s Workers Union (Union) about his predicament, and convey the instructions to note an appeal against the judgment.  There were administrative hitches within the Union.  The Union official assigned to handle the matter, one Mr. Kutayamaoko, fell ill and passed away.

It was only after applicant recovered from his illness, at the end of May, that he followed up the matter with the Secretary General of the Union.  A new National Organiser was then assigned, who assisted in preparing and filing the application for leave to appeal to the Supreme Court.

The applicant submitted a medical certificate from Doctor S.S. Zichawo, who certified him unfit for duty from 10 February 2014 to 28 March 2014.  It is not clear which employment he was declared unfit for duty, as applicant had long been dismissed from respondent’s employment.  Be that as it may, the significance of the report is that he was receiving medical attention at the material time.  That, coupled with the administrative hitches referred to, impeded the timeous preparation of his application for leave to appeal.  It seems to be a plausible explanation for the delay.

However, acceptance of applicant’s explanation for the delay in filing the application for leave to appeal does not put the matter to rest.  The other important factor listed in the Kodzwa and Mazvimbakupa cases, supra, is that of prospects of success on appeal.  In some cases, it can be a very decisive factor.

The applicant attacked this court’s judgment in a number of aspects, in an endeavour to demonstrate that there are high prospects it will be overturned on appeal.

To begin with, the applicant averred that the composition of the Disciplinary Committee which dismissed him from employment was irregular.  He claimed it had unequal numbers of representatives – three for management and two for workers.

In my view, the court’s judgment clearly and comprehensively dealt with this issue.  It simply looked at the applicable provisions of the Code of Conduct, the Collective Bargaining Agreement for the Chemical and Fertilisers Manufacturing Industry, Statutory Instrument 31 of 2011 (the Code).  Paragraph 6 (3) (i) of the Code provides for equal numbers of representatives from either party up to a maximum of four.  The Disciplinary Committee had two representatives from each party.

The appointment of the chair is covered under paragraph 6 (3) (ii).  We emphasized, in our judgment, that this was a distinct, separate and additional process from the one in sub-paragraph (i).  The chairperson, who should be an impartial and neutral person, empowered only to exercise a casting vote, could not properly be drawn from those already appointed as management representatives.

There is, in our considered view, no basis on which the composition of the Disciplinary Committee can be held to be irregular.

The appellant contends that the finding that there was misrepresentation was erroneous.  The court was clear that the communication by the applicant, created the impression that overtime leave was non-negotiable.  On page 9, third paragraph of the court’s judgment, the point is clarified that applicant’s message on the chalk board misrepresented the company’s position on the issue of overtime leave.

Applicant is, in this regard, attacking the court’s factual findings.  He has, in our view, not been able to demonstrate that such findings were unreasonable.

The other issue raised by the applicant is that it was grossly irregular for the Disciplinary Committee to call witnesses.  The Court fully agreed with the NEC Appeals Committee’s treatment of this issue.  It found nothing irregular in the calling and examination of witnesses by the Disciplinary Committee.  It found that this was necessary in order to establish the facts of the matter.  It had to gather the facts first, in order to come to a fair decision.

In this respect, we agree with the respondent’s submission, in paragraph 13 of its Heads of Argument, that

“Regarding the calling of witnesses which is the other proposed ground of appeal it is clear that it lacks prospects as the hand of a disciplinary committee in conducting a hearing is wide, having authority to subpoena witnesses to appear before it and testify.”

On potential to cause prejudice, one only needs to consider the timing of the misrepresentation.  The company was considering some cost saving measures to keep its operations going.  The communication by the applicant had the potential to cause disaffection and industrial unrest.

On the whole, we agree with respondent’s submission, as expressed in the last paragraph of its Heads of Agreement, that;

“The application for leave to appeal suffers from want of prospects of success and is largely on questions of fact rather than points of law.”

In the circumstances, we are of the considered view that the application for leave to appeal has no prospects of success.  On that basis, we are unable to grant the application for condonation for late filing of the application for leave to appeal.

In the result, it is ordered that:

The application for condonation for late filing of chamber application for leave to appeal to the Supreme Court be and is hereby dismissed.

The applicant shall bear the respondent’s costs.

………………………………………… 		……………………………………….. I agree

MANYANGADZE J.				MUZOFA J.

SCANLEN & HOLDERNESS, Respondent’s legal practitioners