Tredcor Zimbabwe (Pvt) LTD V Shingirai Chikoto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/361/14
HELD AT HARARE 9TH JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/361/14

HELD AT HARARE 9TH JUNE 2014			CASE NO LC/H/534/12

& 20TH JUNE 2014

In the matter between:-

TREDCOR ZIMBABWE (PVT) LTD			Appellant

And

SHINGIRAI CHIKOTO					Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr B NMuseba (Legal Practitioner)

For Respondent		Mr W Murambidza (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of NEC Disciplinary Committee Motor Industry which was issued on the 27 June 2012.  The NEC Disciplinary Committee ordered the appellant to reinstate the respondent without loss of salary and benefits.

The respondent had been charged with wilful disobedience to a lawful order by the employer.  It was alleged that on the 23 July 2008 whilst the respondent was on duty he refused to carry out a lawful order that was give to him by the General Manager Operations Mr M Ralphs.  It is alleged that in the hearing he admitted that he disobeyed  the order but he gave reasons for doing so.  The appellant suspended the respondent on the 27 July 2008.  After a hearing the respondent was found guilty and dismissed from employment on the 1 August 2008.  The respondent then appealed to NEC Disciplinary Committee which ordered his reinstatement.

The appellant has now appealed against that finding.  In one of its grounds of appeal the appellant has told this court that NEC Disciplinary Committee erred and misdirected itself in failing to rule on the appellant’s objection. The point in limine to the effect that the appeal to it was non-suited as respondent had not exhausted domestic remedies.  In response to this the respondent told the court that the Code of Conduct was never referred to when the respondent was suspended.  The respondent also submitted that at NEC  Mr Marecha never asked them why they had not exhausted the internal remedies.

It is common cause that from the internal Disciplinary Committee the respondent took up his appeal to NEC.

It is also common cause that section 6 of the Collective Bargaining Agreement: Motor Industry S.I. 84/1993 states that

“Should the party be so dissatisfied with the final decision of the hearing official that he desires to appeal, he may do so within 14 (fourteen) days by advising the authority in writing, who shall hear the appeal through its disciplinary committee.

*Note – It is anticipated that an employer would have an in-house appeal system this latter is to be resorted to before any appeal is made to council.”

The way this rule, is crafted shows that it is mandatory that, there should be an internal appeal before approaching NEC.  This was not complied with.  It is this court’s view that rules are there to give parties and presiding officers guidelines.  These rules have to be adhered to by the court and parties.

Having failed to comply with the rules the decision of NEC is therefore null and void.  In view of the foregoing therefore.

IT IS ORDERED THAT

The decision of NEC is null and void since the respondent did not exhaust internal remedies before approaching NEC Motor Industry.

Muzangaza, Mandaza & Tomana, appellant’s legal practitioners