Trymore Mabwe v City Parking

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/301/16
HARARE, 23 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/301/2016
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IN THE LABOUR COURT OF ZIMBABWE	                     JUDGMENT NO. LC/H/301/16

HARARE, 23 MARCH 2016				         CASE NO. LC/H/APP/1341/15

AND 13 MAY 2016

In the matter between:-

TRYMORE MABWE							Applicant

And

CITY PARKING								Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	T.J. Magaya (Legal Practitioner)

For Respondent	B. Chizengeya (Legal Practitioner)

MUCHAWA, J:

This is an application for condonation of late filing of an appeal.

The applicant is a former employee of the respondent.  He was employed as a parking marshal at the relevant time when he incurred a $2.00 shortfall on the 6th of October 2014 in remitting his collections for the day.

He was then charged of the offence of unlawful taking of property with the intention of permanently depriving the company of the use of such property which is a 5th schedule, Part IV, Group 4 offence, section 5 under the National Employment Code for the Commercial Sectors.  He was found guilty and dismissed from employment.  Appeals to the Local Joint Committee and the Negotiating Committee confirmed the decision of the employer. It is that decision the applicant wishes to appeal against.  He is out of time in lodging the appeal hence this current application.

The law to be applied in such an application is laid out in the case of Jakazi & Anor v Anglican Church of the Province of Central Africa SC-10-13.  The broad principles to be considered are; the extent of the delay, the reasonableness of the explanation proffered for the delay, and the prospects of success on appeal.  I turn now to apply these principles to the matter at hand.

Extent of the delay

The decision of the Negotiating Committee was handed down on the 16th of July 2015 but received by the applicant on the 10th of September 2015.  This application for condonation of late filing of appeal was filed on the 10th of November 2015.

Rule 15 of the Labour Court Rules SI 59 of 2006 provides that an appeal should be lodged within twenty-one days from the date when the appellant receives the determination to be appealed against.

The applicant should therefore have filed his appeal by the 9th of October 2015.

The application for condonation is therefore some three weeks out of time.

Explanation for the delay

The applicant explains that he was not in willful default but had serious financial constraints to be able to meet the cost of legal representation so as to lodge his appeal as he was out of employment.  It is explained that the applicant had thus far been represented by the trade union but it could only go that far.

The respondent argues that the explanation tendered is not reasonable as the applicant had knowledge of the time limits regarding noting of the appeal.  Further, it is contended that the applicant had the option of securing legal aid and/or continuing to be represented by the trade union but has not explained why he did not pursue these.

I agree with the respondent that the applicant has not explained why his trade union did not continue to assist him as they have a right of audience before this Court in terms of Section 92 (b) of the Labour Act [Chapter 28:01].  The option of legal aid was not pursued too.

Most litigants before this court would have lost their employment.  Accepting the financial constraint explanation in every case would mean that we would be clogged by such applications for condonation.  In the end, it is about how a person prioritizes their matter and utilizes all the available options.  It was precisely in recognition of this factor that trade unions were given the right of audience in this court.

In the circumstances, the explanation tendered is not reasonable.

Prospects of success

The proposed grounds of appeal are;

The negotiating committee erred and misdirected itself in putting the onus of proof on the appellant instead of the respondent.

The negotiating committee erred in confirming the verdict and penalty yet there was no proof on a balance of probabilities that appellant had committed an offence.

The negotiating committee misdirected itself by confirming a penalty of dismissal which was grossly unreasonable under the circumstance (sic).

It is the applicant’s case that a clear reading of the minutes suggests that the onus of proof was shifted to the accused yet it is trite that he who alleges proves.  In particular, it is alleged that the applicant was made to prove the intention to –permanently deprive the employer.

The respondent argues that the issue raised is procedural and should have been brought by way of review and not appeal.

It is also denied that the record shows that the onus of proof was shifted to the applicant as alleged.  The respondent insists that it proved and applicant admitted having a shortfall of $2.00 as alleged.  The fact that the reimbursement was done after several requests and eight days after the shortfall is alleged to point to an intention to permanently deprive the respondent.

Where a party wants a judgment set aside for coming to the wrong conclusion on the facts or law, the correct procedure is by way of appeal.  Where, however the real grievance is on the method of trial, the appropriate procedure is to bring the case on review.  City of Harare v Zvobgo 2009 (1) ZLR 218 at 224.

Ground 1 of appeal seems to question the method of trial and should have been brought by way of review not appeal.

In any event the record shows that the respondent proved that company property in the form of $2.00 had gone missing in the custody of the applicant, who admitted to this.  It was also proved that this was also paid a week later.  There is no basis for alleging therefore that the onus of proof was put on the applicant, in the circumstances.

The applicant questions the propriety of the guilty verdict on the basis that there was no proof in proposed ground 2 of appeal.

For the same reasons stated above, in respect to ground 1 of appeal, I find that there is evidence on record of the applicant having committed the offence.

In the third ground of appeal the applicant questions the dismissal penalty in the circumstances.  It is argued that the pending warning penalty for absenteeism was not an offence similar to the one in issue and should not have been considered as an aggravating factor.

The respondent argues that the dismissal penalty is appropriate as the offence was serious as it involved dishonesty and trust which goes to the root of the employment relationship thus warranting dismissal.

The consideration of the penalty in force in respect of the offence of absenteeism is argued to be relevant.

In the case of Toyota Zimbabwe v Posi SC 5/07 it was held that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship.

Section 12B (4) of the Labour Act enjoins an adjudicating authority, to consider, among other things, an employee’s previous disciplinary record, in considering an appropriate penalty.  There is therefore nothing improper about considering the previous offence of absenteeism and its penalty.

In the circumstances, I find that though the delay is not necessarily inordinate, the explanation for the delay is not reasonable and there are no prospects of success on appeal.  Consequently the application for condonation is dismissed.

Magaya-Mandizvidza Legal Practitioners, applicant’s legal practitioners

Chizengeya & Partners, respondent’s legal practitioners