Stanlous Makusha v Small Enterprises Development Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/468/2014
HARARE, 26 JUNE 2014
JUDGMENT NO LC/H/468/2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/468/2014

HARARE, 26 JUNE 2014 &				  CASE NO LC/H/918/2013

1 AUGUST 2014

In the matter between:

STANLOUS MAKUSHA						APPELLANT

Versus

SMALL ENTERPRISES DEVELOPMENT			RESPONDENT

CORPORATION

Before The Honourable P Muzofa		:	Judge

For the Appellant		G C Manyurureni	(Legal Practitioner)

For the Respondent	F Piki	(Legal Practitioner)

MUZOFA J:

The parties are embroiled in a labour dispute. The appellant was dismissed from employment by the respondent on account of lack of skill to perform his duties.

Before the matter was heard on the merits the respondent raised two preliminary points. The first preliminary point being that the appellant was improperly before the court since he did not exhaust local remedies provided for in the respondent’s Code of Conduct. The second issue being that some of the grounds of appeal are grounds for review and should be struck off. On that basis Counsel for the respondent urged the court to dismiss the appeal. The application for dismissal on the preliminary points was opposed. Counsel for the respondent’s basis of opposing the first preliminary point was that the respondent’s Code of Conduct had outlived its effective usefulness since it referred to the Labour Relations Act. On the second preliminary point it was submitted that the appellant was aggrieved by both the procedural irregularities and the substantive findings by the disciplinary committee.

Precedent has shown that where a Code of Conduct provides for a procedure to be followed the employee should exhaust the remedies available under the Code before approaching the Labour Court see generally Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (SC). Even where an employee believes termination was unlawful because the employer failed to comply with the disciplinary Code the requirement to exhaust local remedies still applies.

The respondent’s code of conduct provides as follows:

“4.	An employee who is aggrieved by the Board’s determination has a right to appeal in accordance (sic) to the provisions of the Labour Relations Act to the Ministry of Labour.”

The code is clear the employee is not directed to the Labour Court but to the Ministry of Labour. This then becomes an appeal procedure outlined in section 93 of the Labour Act. The appellant as submitted by the respondent was first supposed to refer the matter to a labour officer. I do not read the said Code of Conduct to imply that the employee has to refer the appeal directly to the Labour Court. Counsel for the appellant argued that section 93 of the Labour Act did not govern appeals from a lower forum and that it would be absurd for a matter to be referred to a labour officer for conciliation when parties have already disagreed. I do not agree with this view. It is my considered view that the Code of Conduct is clear it needs no interpretation. The appellant was provided with a clear procedure to follow. The appellant chose not to follow it. The appellant should not be allowed to circumvent the procedure outlined in the Code of Conduct and appeal before this court. The point in limine has merit the appellant has to refer the matter to a labour officer first. There has been no special reasons advanced for the appellant to skip the procedures in the Code of Conduct.

The second preliminary point relates to the grounds of appeal. It was submitted that the grounds of appeal three and four challenge the procedural aspects of the disciplinary hearing. This was not disputed. Accordingly grounds of appeal three and four are expunged.

Having made the foregoing findings, the inescapable result is that the preliminary points have merit accordingly the following order is made:

The preliminary points be and are hereby upheld.

The appellant is ordered to refer the matter to a labour officer.

No order as to costs.

Manyurureni & Company, appellant’s legal practitioners

I E G Musimbe & Partners, respondent’s legal practitioners