Musafare Bosha v Tauya Coaches Services (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/481/2016
HARARE, 1 JUNE 2016 &
CASE NO LC/H/APP/1173/2015
5 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/481/2016

HARARE, 1 JUNE 2016 &				        CASE NO LC/H/APP/1173/2015

5 AUGUST 2016

MUSAFARE BOSHA							   APPLICANT

TAUYA COACHES SERVICES (PVT) LTD				RESPONDENT

Before the Honourable G Musariri, Judge

For the Applicant	Ms F Ndou (Attorney)

For the Respondent	I James (Manager)

MUSARIRI J:

The applicant applied for condonation of late noting of an appeal. The respondent opposed the application.

The material facts are as follows:

The applicant worked for the respondent as a truck driver.

He was charged with misconduct.

A hearing was held. He was found guilty.

By letter dated 12 May 2014 the respondent dismissed him from employment.

On 30th June 2014 the applicant applied to this court for condonation of late noting of appeal under reference LC/H.APP/300/14.

Justice Chidziva dismissed the application on 9 January 2015.

The judgment was made on the basis that the applicant had not exhausted domestic remedies as he failed to appeal to the respondent’s Chief Executive Officer (CEO).

The applicant then appealed to the CEO.

By letter dated 13th July 2015 the respondent’s Managing Director (CEO) turned down the appeal on the basis that he had no authority to “entertain your appeal which is being presented to me over a year down the line.”

On 25th September 2015 the applicant then filed the present application.

The draft grounds of appeal show an intent to appeal against “the decision handed down by the Disciplinary Committee at Harare on the 12th of May 2014…”

This case demonstrates the importance for attorneys to properly analyse their cases in light of the applicable laws. The applicable law in casu is the Collective Bargaining Agreement : Transport Operating Industry S I 67/12. Its Sixth Schedule contains a Code of Conduct. Part E of the Code deals with appeals. E1 provides that a party aggrieved by the decision of the Disciplinary Committee (DC) may, within five days, appeal to the Chief Executive. The applicant failed to appeal to the CE within the prescribed period. The Code does not empower the CE to condone or entertain late appeals. Assuming that the CE has power to entertain late appeals, the CE in casu might be ordered to hear the appeal on the merits. Yet the applicant approached this court seeking to appeal against the verdict of the DC. The Code does not provide for such an appeal. Under E2 it provides for an appeal against the decision of the CE. Thus, in the alternative, there is no basis for the condonation sought because there is no right of appeal to this court against a determination of the DC.

All in all I consider that the application lacks merit and needs be dismissed.

Wherefore it is ordered that:

The application for condonation be and is hereby dismissed.

Each party shall bear its own costs.

G Musariri

J-U-D-G-E