Alois Pawandiwa v Innscor Africa Limited t/a Bakers Inn Bakeries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/34/2021
HARARE, 16 NOVEMBER 2020 &
CASE NO LC/H/APP/131/20
9 APRIL 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/34/2021

HARARE,  16 NOVEMBER 2020 &		   CASE NO LC/H/APP/131/20

9 APRIL  2021

In the matter between:-

ALOIS PAWANDIWA				APPLICANT

And

INNSCOR AFRICA LIMITED  T/A		RESPONDENT

BAKERS INN BAKERIES

Before the Honourable Kudya  J

For the Applicant			Terence Mazhindu (Legal Practitioner)

For the Respondent			A. Dracos (Legal Practitioner)

KUDYA, J:

This is an application for the late filing of an application for review. Following a determination in the labour dispute between the employer and the employee the employee breached the legal requirement pertaining to his filing of a review application.  It is against this background that the employee seeks to have this court condone his breach and grant him a chance to be heard in his review matter.  The employer is opposed to the grant of such condonation and persists that this court decline such indulgence.

It is settled law that a condonation applicant’s success or failure is dependant principally on reasons and extent of the excuse and prospects of success on the intended process.  See Jansen v Acavalos 1993(1) ZLR 216(5).  It is the cumulative effect of these tenets which decides a particular matter.  A reading of the papers filed of record and the submissions made on the matter speak primarily to the issue of prospects. The record is silent on why the employee is in breach of the rules.

At the outset of the matter the employer argued that the condonation application was fatal in so far as it was observed that the review and appeal were not lodged simultaneously.  It was therefore the employer’s views that the employee was in breach of rule 19(3) Labour Court rules.

In response the employee reasoned that his appeal and review deals with distinct issues so there was no way he could comply with rule 19(3).  In fact he reasoned that the review only pertained to the disciplinary committee proceedings yet the appeal was an appeal against the appeals. Committee’s decision. The court is persuaded that to the extent that the processes sought to impugn what was done by different level hearing bodies rule 19(3) thus did not apply. The point in limine on that point being ill placed should fail.

Turning to the merits of the condonation application it should be noted that the record is replete with sentiments that the disciplinary committee sat over a matter on which it lacked jurisdiction and also that the employer failed to follow the procedure laid down in the Code of conduct.  It is pertinent to observe that the issues raised by the employee if they succeed would indeed result in a nullification of the disciplinary process which saw the employee losing his job.  Without going into the niceties of whether indeed the review issues are merited it is clear from the same that the employee has raised arguable issue which need to be tested by the review process.

The employee gives a long narration of what he styles malice in the proceedings which caused him to delay filing his review application.  As noted earlier the issues he raises are arguable and can be tested on review. For that reason the justice of the matter dictates that he be granted the indulgence which he is seeking. In the result the condonation application succeeds.

IT IS ORDERED THAT

Application for condonation of late noting of review application being merited it be and hereby succeeds.  Each party bears own costs.

Mugomeza and Mazhindu, Applicant’s Legal Practitioners

Honey and Blanckenberg, Respondent’s Legal Practitioners