Professor Chingwaru v British American Tobacco Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/282/2020
HARARE, 13 NOVEMBER 2020
CASE NO. LC/H/18/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/282/2020

HARARE, 13 NOVEMBER 2020		           CASE NO. LC/H/APP/18/20

AND 27 NOVEMBER 2020

PROFESSSOR CHINGWARU						APPLICANT

BRITISH AMERICAN TOBACCO ZIMBABWE	    		 RESPONDENT

Before Honourable G. Musariri, Judge

For Applicant		-	Mr O. Kondongwe

For 1st Respondent	-	Mr A. Mufari, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of late filing of an appeal.  Respondent opposed the application.  The intended appeal is against the judgement of the Court referenced LC/H/171/19.  The judgment is dated the 14 June 2019.  This application was filed on the 22nd January 2020.  Thus the extent of the delay in filing the appeal is almost 6 (six) months.  I consider that to be an inordinate delay.  The Applicant’s attorney stated that the delay is not inordinate.  Applicant was required to seek leave to appeal within 21 days, but did so 5-6 months later.  I consider it is disingenuous to say the delay is not inordinate.  The explanation or delay is that Applicant was looking for money to fund the appeal.  As pointed out by Applicant’s attorney, delay is not the sole criteria involved in matters of this nature.

I turn now to the merits of the matter.  Respondent (the employer) found Applicant (employer) guilty of misconduct.  This was after the employer whilst driving the employer’s vehicle diverted from his route and proceeded to his home.  He chilled for an hour at home then decided to proceed to work.  On these facts he was found guilty of “Habitual and / or substantial neglect of duty”.  The facts are largely common cause.

In this Court the employee sought to argue that there was no evidence that the employee “conducted personal business during working hours”.  Apparently the employee was under a misapprehension that his detour to his home, by itself, does not amount to neglect of duty.   However nothing more was required to be proved to substantiate the charge against him.

The prescribed penalty for the offence was a dismissal.  The employer exercised its discretion on penalty in favour of a dismissal.  Nothing was pleaded or proved to show that the employer grossly erred on penalty.

CONCLUSION

The explanation for delay in this matter is not implausible.  I was prepared to give Applicant the benefit of doubt on the question of delay.  However as I pointed out above he has no leg to stand on the merits.  The intended appeal is a hopeless venture.

Wherefore it is ordered that:

1. The application for condonation be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E