Varichem Pharmaceuticals (PVT) Ltd v Learnmore Matove

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/274/2016
HARARE 1 FEBRUARY 2016
CASE NO. LC/H/274/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/274/2016

HARARE 1 FEBRUARY 2016				       CASE NO. LC/H/696/14

AND 6 MAY 2016

VARICHEM PHARMACEUTICALS (PVT) LTD			Appellant

LEARNMORE MATOVE							Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Mr V. Muza, Attorney

For Respondent		Mr G. Pendei, Attorney

MUSARIRI, J:

On 23 July 2014 the Appeals Committee of the NEC for the Chemicals & Fertilizers Manufacturing Industry made a determination.  It ordered Appellant to reinstate Respondent’s employment or pay him damages in lieu of reinstatement.  Appellant then appealed to this Court against the determination.  Respondent opposed the appeal.

The grounds of appeal were three-fold as follows,

“1.	The Appeals Committee misdirected itself when it held that the Respondent filed its appeal on time, when such appeal had as a matter of fact been file (sic) out of time.

2.	The Appeals Committee failed to pay due regard to the evidence in the original record of Appeal incriminating the Respondent and hence fell into the blunder of acquitting him instead of confirming his guilt.

3.	The Appeals Committee also misdirected itself when it ruled that the original hearing committee had not taken mitigating factors into account when in fact, the said mitigating facts had been considered when arriving at sentence.”

Respondent replied thus,

“Ad Ground 1

This matter was adequately addressed by the NEC Appeals Committee and it is very clear from the record that Respondent’s appeal was noted on time and even if it were out of time which is denied the NEC made a finding that the Appellant ought to have dealt with the merits of the matter.

Ad Ground 2

This is a generalization of facts.

The NEC dealt at large with whether or not the Respondents are guilty as charged.  It correctly found that the charges were baseless.  In any event the appeals authority did not only reinstate the Respondents on the basis of the fact that they were not guilty.  There were glaring irregularities which made the NEC into setting aside the dismissal of the respondents like the fact that the person who disposed of the respondents’ appeal was not qualified to do so, the appeals officer did not deal with the merits of the matter among other issues.  The resultant decision of setting aside the appeals determination can therefore not be faulted.

Ad Ground 3

The NEC again did not err in this regard as the record of proceedings clearly points    to the inescapable conclusion that mitigation was not considered.”

I consider that the matter turns on the 1st ground of appeal.  The relevant provision in the applicable Collective Bargaining Agreement (CBA) provides for an appeal to the Chief Executive against a ruling by the Disciplinary Committee “within five working days.”  Respondent was dismissed on 11th April 2014.  He appealed against the dismissal on the 26th April 2014.  That was (thirteen) 13 days after his dismissal.  Nonetheless the NEC found that the appeal was noted on time.  Its reasoning therefor is unclear.

In his Heads of Argument (para 2.3) Respondent argued that Appellant closed its factory from the 17th April 2014 to the 5th May 2014 thereby interrupting the dies induciae.  The mere fact that Appellant accepted Respondent’s appeal on the 24th April 2014 during the shut down shows that service of documents was possible during the shut down.

In any event, as argued by Appellant, at worst service could have been effected by affixing the document/s to the gate or principal door as the Sheriff does when he cannot find anyone at the premises.  The CBA requires the noting of an appeal within 5 working days.  The phrase “working days” does not exclude a shut down.  If same occurs during normal working days the employee must nonetheless serve his appeal.  Accordingly Appellant rightly ignored the appeal served out of time.  The CBA does not permit condonation of a belated appeal.  Evidently I am persuaded by and agree with Appellant that the NEC wrongly determined the matter.  There being no valid appeal determined by the Chief Executive, the NEC did not come into the picture.

In the circumstances the appeal has merit and must be upheld.

Wherefore it is ordered that,

The appeal be and is hereby upheld;

The determination by the NEC (Chemicals & Fertilizers Manufacturing Industry) dated the 23rd July 2014 is set aside; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E