Tapfumaneyi Gordon V ORT Printing Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/338/2014
HARARE, 30 MAY, 2014 & 20 JUNE 2014
CASE NO
JUDGMENT NO LC/H/338/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/338/2014

HARARE, 30 MAY, 2014 & 20 JUNE 2014	    CASE NO LC/CON/H/45/2014

In the matter between

TAPFUMANEYI GORDON						   APPELLANT

AND

ORT PRINTING SERVICES						RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Appellant	M. Chimhuka  (Trade Unionist)

For The Respondent	S. Hofisi   (Legal Practitioner)

REASONS FOR JUDGMENT

CHIVIZHE J:

On 30 May, 2014 I dismissed an application placed before me for condonation of late noting of an appeal before the NEC Appeal Committee set up under the Collective Bargaining Agreement for the Printing, Packaging and Newspaper Industry S I 174 of 2012.

I indicated then I would furnish the reasons in writing.  The following are my reasons;

The Applicant in its application sought an order in the following terms:

“Whereupon after perusing documents filed of record and hearing parties, filed of record and hearing parties it is hereby ordered that;

Leave for condonation for late noting of appeal is hereby granted.

Accordingly, the NEC Appeals Committee is directed to hear the appeal.”

The brief factual background is that the applicant on 6 November, 2013 appeared before a disciplinary committee to answer a charge of failure to follow a lawful instruction issued by his supervisor.  He was found guilty and a penalty of dismissal was consequently imposed.  On 26 November, 2013 he appealed under the provisions of the relevant code of conduct to the Managing Director.  The Managing Director in his determination upheld the decision of the Disciplinary Committee.  The next level of appeal under the code was the NEC Appeals Committee.  On 21 January 2013 the applicant noted an appeal to that body.  He was out of time by 7 days.  The Appeals Committee however only advised the applicant two months later on 12 February, 2014 that he should seek condonation of late filing of his appeal before that body to the Labour Court.  The applicant then filed the present application.

When parties appeared before me, the respondent having failed to file heads on time, in the absence of a proper application for condonation for such failure to comply with the Rules, the applicant having then applied to the court to proceed in terms of Rule 19(3) of the Rules, the court ruled that the respondent was barred and therefore had no right of audience before the court.

The court invited the applicant to address the court on the jurisdictional point raised by the respondent that the application was improperly before the court.  The applicant submitted that the application was properly before the court for the following reasons:

The relevant Code of Conduct being Collective Bargaining Agreement, Printing, Packaging and Newspaper Industry Statutory Instrument 174 of 2012 does not provide for a right to apply for condonation before the NEC Appeals Committee.  In the absence of any such provision in the Code the applicant believed that the Labour Court had jurisdiction to entertain such an application.

The Labour Court has also based on precedents emanating from the court granted similar application before the court.  Reference was made to an order granted by CHIDZIVA J in Kainos Mapfumi v Marvo Stationery LC-CON-H-83-11 (Copy tendered to the court).

Finally the NEC Appeals Committee in dismissing the application for condonation placed before it by the applicant had in a letter dated 12 February 2014 directed the applicant to instead approach the Labour Court to seek such condonation. It was the applicant position that the application was therefore properly before the Labour Court.

For the court to adjudicate in a dispute the court requires the necessary jurisdiction.  Jurisdiction is the power and competence of a court to hear and determine an issue between the parties.  The Labour Court being a statutory creation its powers and competence are derived from statute. The court therefore can only entertain applications brought in terms of the Labour Act and any other enactment. See National Railways v Zimbabwe Railway Artisans Union & Ors SC-8-05.

The applicant insisted before the court that this court had jurisdiction on the three grounds referred to supra.  The fact that the Code of Conduct does not expressly provide for applications for condonation does not, in my view, deprive the NEC Appeals Committee of that power.  The power to entertain an application for condonation of late filing of an appeal is inherent in any appeals authority that is set up to entertain appeals. There was in my view no need for a specific provision to be outlined in the relevant Code of Conduct granting such power.

In regards the decision by my sister CHIDZIVA J in the Kainos Mupfumi matter referred to supra I respectfully disagreed with the decision.  As the decision was made by a judge with same power and competence it was my view that I was not necessarily bound by that decision.

The last argument raised was that the NEC Appeals Committee itself directed the applicant to approach the Labour Court to seek condonation for the late filing of the appeal before that body.  My comments above would apply.  The NEC Appeals Committee as an appeals body set up under the relevant Code of Conduct has the power and competence to entertain applications for condonation for late filing of appeals before that body.  The Labour Court as a statutory creation only has powers to hear specific appeals and applications under the Labour Act [Cap 28:01].  The issue was whether or not the court had jurisdiction to entertain the particular application before me on the basis of the Labour Act [Cap 28:01]. I was satisfied that the application was not one of those specifically provided for under the Labour Act [Cap 28:01].  It was for these reasons the application was dismissed.

V Nyemba & Associates, respondent’s legal practitioners