Ackim Zembe v Innscor Africa (Private) Limited

### Preamble
JUDGMENT LC/H/178/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 11TH MARCH 2015
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE ON 11TH MARCH 2015           CASE NO. LC/H/275/15

AND 18th MARCH, 2016

In the matter between:-

ACKIM ZEMBE                                            -		APPELLANT

This is an appeal against a determination by the Respondent Appeals Authority handed down on the 12th of February 2015 but received by Appellant on the 2nd March 2015. The appeal is opposed.

The Appellant was employed by the Respondent as a Shift Manager. He appeared before a Disciplinary Authority on the 10th of July, 2008 facing charges of misconduct i.e Section 4 (a) of Statutory Instrument 15 of 2006. The allegations were that the Appellant had, following a spot check, been found with a negative variance of Z$80 Billion and Z$8 billion. The Disciplinary Authority referred its determination to Prime Legal Aid Society who were facilitating the Appellant legal representation at the time. The judgement was referred on 17th of July, 2008. The Appellant received the judgment later from there. When the Appellant attempted to note his appeal he was advised that he was out of time as the code required that an appeal be noted 7 days from the date of judgement.

The Appellant still aggrieved then referred a complaint to the Labour Officer. The matter was subsequently referred to compulsory arbitration. The arbitral award was handed down on the 13th of June, 2014. In her ruling the Arbitrator found that the Appellant had not exhausted domestic remedies and should explore that route. The Appellant then lodged his second appeal to the Appeals Authority. In a letter dated 8th of July 2014 but received by Appellant on the 28th of October 2014 the Appellant was advised that his appeal could not be heard as it was out of time and there was no application for condonation. The Appellant then filed an application for condonation of late noting of his appeal on the 31st of October 2014. In a letter dated 12th February 2015 the Human Resources Director advised the Appellant of the dismissal of his application for condonation on the two points, firstly on the basis that the Appellant had tendered false reasons for his failure to comply with time frames and secondly that he had no prospects of success on appeal.

Still aggrieved by this determination and undeterred the Appellant then noted the present appeal with this Court. The basis for appealing, as outlined in his grounds is as follows;

This appeal is noted and these Grounds of Appeal were drafted without the benefit of the record of proceedings which Innscor Africa, through the office of the Appeals Authority, Mr M. Muleya, flatly refused to provide despite written request for it.

There is clear evidence that the Appeals Authority who heard the appellant’s application for condonation for late noting of appeal was prejudiced against the appellant and should have recused himself. Suffice to point to his decision letter of the 12th of February 2015 which ends by stating – “Please be advised that we consider this matter closed and no further correspondence will be entertained on same.”

The respondent erred in that no proper hearing of the appellant’s application for condonation of late noting of appeal was conducted thus denying the appellant the right to be heard in flagrant breach of the audi alteram partem principle of natural justice. After submitting my application all that I then received from the respondent was the letter from the respondent’s Human Resources Director, Mr M. Muleya and dated 12th February 2015, which was purportedly deciding on my application. The appellant was never called to a hearing and given the opportunity to expound on or amplify his submissions as contained in the application. The respondent’s letter of the 12th of February 2015 does not even indicate whether or not the need to conduct a proper hearing in respect of the application was ever given consideration. This suggests that the respondent took a cavalier approach to this matter without regard being had to whether or not real justice was being delivered to me.

On the basis of the facts and a correct appreciation of the law on the standard of proof required in these matters the Appeals Officer erred in holding that my explanation for the delay in submitting my application for condonation of late noting of appeal was untrue. The Appeals Officer failed to give full weight and consideration to my detailed explanation of the chronology of events that led me to being late in submitting the application, which was, in my submission cogent and reasonable. I submit that a reasonable person facing the same circumstances that I faced in this matter would have behaved in the manner that I did.

There are good prospects of success on appeal if my appeal within the Innscor Appeals structure is heard on the merits and determined fairly, in that –

My internal deposit slip giving rise to the charges clearly shows no variance or under banking as alleged by Innscor in respect of the cash I banked on the day. Innscor should produce the deposit slip, swipe cards till roll and my own point of sale till roll if it contents that I wrong on this one.

I never admitted to the charges as alleged as initially the allegation was not on banking variance which I was later charged with.

The other allegation that I had not completed the requisite stock closure documentation is patently incorrect in that on the day in question it is, in fact, the respondent’s Stats Officer who collected these documents from my desk before I could fully complete them. He was under the erroneous impression that I had left for home without completing these when in fact I was still at work at that time.

The Respondent opposes the appeal. In its Notice of Response, the Respondent submitted that the appeal is not properly placed before the Labour Court. Further Appellant grounds of appeal are grounds for review rather than appeal. The appeal is also irregular and defective as it is essentially three applications in one matter. On this basis the Respondent prayed for the dismissal of appeal.

The Respondent raises a valid objection on the issue of the forum. It is clear on the basis of Section 8 (6) of the Labour (National Employment Code of Conduct) Regulations, 2006 that an appeal against a determination by the Appeals Officer/Committee has to be referred to a Labour Officer or an Employment Council Agent within seven working days of receipt of such decision. The purported appeal before this Court is thus improperly before this Court.

In the circumstances an order is granted as follows:

The purported appeal filed under Ref LC/H/275/15 is hereby dismissed as being improperly placed before the Labour Court.