Tendai J Chifamba v Minister of Primary & Secondary Education & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/49/2016
HARARE, 27 JANUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/49/2016

HARARE, 27 JANUARY 2016    		         	CASE NO. LC/H/839/15

AND 5 FEBRUARY 2016

In the matter between:-

TENDAI J CHIFAMBA						Appellant

And

MINISTER OF PRIMARY & SECONDARY			Respondents

EDUCATION & ANOR

Before Honourable P. Muzofa, Judge

Appellant			In person

For Respondents		N. Muzuva (Civil Division)

MUZOFA, J:

The appellant was employed by the respondent as a teacher at one of respondent’s school.  He was dismissed on account of absenting himself from duty without authority.  He then approached this court on appeal.

Before the matter proceeded into the merits a point in limine was taken for the respondent.

It was submitted that the appellant filed an application for review before the second respondent.  No determination by the second respondent has been made.  To that extent the appeal was improperly before the court.   Further to that it was submitted that Section 51 of the Public Service Regulations “the Regulations” provides for the appeal and review procedures and the appellant has failed to comply with them.

Appellant on the other hand submitted that he received a letter from the second respondent indicating that it would not review his case since it was before this court.  The appeal would therefore be properly before the court.

The court requested parties to provide documentation relating to the application for review and the purported letter from the second respondent which were filed by both parties.

A perusal of the documents show that on 28 August 2015 the appellant applied for review of the disciplinary proceedings through the disciplinary authority.  On 16 September 2015 the appellant filed a Notice of Appeal with this Court.  On 20 October 2015 the second respondent wrote a letter to the appellant advising him that the application for review will not be considered since the matter was already before the Labour Court.

Section 57 of the Regulations deals with appeals to the Labour Relations Tribunal (now the Labour Court) and reviews by the Commission.  The Section provides;

“A member who is aggrieved by –

A determination by a disciplinary authority other than the Commission that he is guilty of misconduct in terms of Section 46;

Any penalty imposed upon him in terms of section 50 by a disciplinary authority other than the commission ... may either appeal against the determination or penalty to the Labour Relations  Tribunal or request the Commission, in writing through the disciplinary authority, to review the determination or penalty in terms of this section.”

The wording of that section is clear.  The member who is the appellant in this case has an option to either approach the Court or the second respondent.  It is not in dispute that the appellant approached both for the resolution of his matter.  However the second respondent has indicated that it is no longer seized with the matter in favour of a determination by this Court.

The appellant was wrong by approaching both fora.  However I donot take it as fatal to lead to a dismissal of the case.

In any event the respondent’s submission that that the appellant was supposed to apply for review first is incorrect.  The appellant had an option.

In view of the circumstances the justices of this case require that the matter proceed to be heard on the merits.

The preliminary point be and is hereby dismissed.