Victor Gurajena v Interfresh Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/274/13
HELD AT HARARE ON 20th FEBRUARY, 2013
CASE NO. LC/H/961/12
In the matter between:-
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/274/13

HELD AT HARARE ON 20th FEBRUARY, 2013   CASE NO. LC/H/961/12

In the matter between:-

VICTOR GURAJENA					-		Appellant

And

INTERFRESH LIMITED				-		Respondent

Before the Honourable G. Mhuri, Senior President

For Appellant	: 	Mr.L.W. Ndhlovu (Legal Practitioner)

For Respondent:	Mr. D. Kandwe (Legal Practitioner)

MHURI G.:

As one of his grounds of appeal, Appellant raised the issue of the use of incorrect Code of Conduct.  The ground reads:-

“a.	We submitted to the hearing committee that we have grave reservations about their employ of the Interfresh Code of Conduct in bringing charges of misconduct against the Appellant.

Our reasoning was based on the mere fact that Section 3 of the Interfresh Code of Conduct provides the following.

The Code of Conduct is applicable to all employees of Interfresh Limited … Managerial up to Senior Management (B1) and none managerial.  Employees in grades A4 up to A1 are not covered by this code and shall be handled under Statutory Instrument 371 of 1985.”

It is this particular ground that I decided to deal with first and make a ruling on before one proceeds to deal with the rest of the grounds as, a finding that the Code did not apply to Appellant disposes the appeal.

It was Appellant’s submission that the Interfresh Code of Conduct (The Code) which was used was the wrong Code.  As Appellant was in grade A4 and the Code was registered in 2002, and the allegations having arisen in 2009, the Code did not cover him.  It was submitted that the correct Code that should have been used was the Labour (National Employment Code of Conduct) Regulations 2006 Statutory Instrument 15 of 2006.

Appellant submitted that despite the evaluation exercise that was done by Respondent he still could not be covered by the Code as the amendments to the grades were not registered.

It was Respondent’s submission that the issue of the Code as raised by Appellant was now res judicata as the matter was once before this court with the same facts being raised by Appellant, the parties being the same and a judgment was handed down.  The court ruled that Appellant was correctly covered by the Code.

On the 27th May, 2010 this court heard the matter of Victor Gurajena V Interfresh LC/H/433/09.

Appellant was represented by a legal practitioner Mr. S. Mugadza.  Appellant raised a point in limine that he was charged and dismissed in terms of Respondent’s Code of Conduct, that he was in Grade A4 and accordingly fell outside the jurisdiction of the Code.  He relied on Section 3 thereof.

After considering the submissions by both parties, the court issued a judgment LC/H/156/10 ruling that Appellant was properly covered under Respondent’s code of conduct.  It then dismissed the point in limine.

In casu Appellant now represented by a different legal practitioner has raised the same issue supporting it with the same arguments.

‘It is trite that in order for the special plea of res judicata to succeed, it must be established that the judgment given in the prior action concerned the same subject matter:

was founded on the same grounds and was

between the same parties….”

per Reynolds J.

Madondo V Fyfe and Others 1988 (1) ZLR 138 (HC) at 140 F.

In view of the above I find that Respondent has established the plea of res judicata.  If Appellant was not satisfied with the previous court’s ruling, it ought to have approached the Supreme Court on appeal instead of raising the same argument again before this court.  In a way Appellant is asking me to review the previous Court’s decision which I cannot do.

To that end, the Appellant’s ground of appeal is dismissed.

The Registrar is directed to reset the appeal for hearing on the remainder of the grounds.

Donsa-Nkomo and Mutangi – Appellant’s Legal Practitioners

Gula-Ndebele and Partners – Respondent’s Legal Practitioners