Brian Mariza v National Foods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC-H-690-14
Held at Harare 27th May, 2014, 13th August, 2014
AND 10TH OCTOBER, 2014
CASE NO. LC/H/13/12
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IN THE LABOUR COURT OF ZIMBABWE  JUDGEMENT NO LC-H-690-14

Held at Harare 27th May, 2014, 13th August, 2014

AND 10TH OCTOBER, 2014			CASE NO. LC/H/13/12

In the matter between;

BRIAN MARIZA                             APPLICANT

VS

NATIONAL FOODS                           RESPONDENT

Before the Honourable B.T CHIVIZHE, J.

Applicant in person

For Respondent Mr G. Chingoma (Legal Practitioner)

CHIVIZHE, J.

On the 13th August 2014 the court granted an order dismissing the application for condonation of late noting of review filed by the Applicant. The Applicant having requested reasons for the order these are they.

The Applicant was employed by Respondent as a Human Resource Officer. He was charged with committing serious acts of misconduct in terms of Section 3.9.4 and 3.11.2 of the National Foods Limited Code of Conduct i.e. Un-satisfactory Work Performance and Bribery or Corruption respectively. The allegations were that Applicant solicited for a gift or bribe from a former employee (Fabric Mujeyi) as a reward for facilitating payment of his terminal benefits. Applicant had been authorized to effect payment of the terminal benefits but he deliberately withheld payment of same to ensure he received his payment. It is common cause a trap was set and Applicant was arrested accepting the gift from Mujeyi.

The Applicant was arraigned for a disciplinary hearing. He was found guilty of unsatisfactory work performance. A penalty of dismissal was consequently imposed. He appealed unsuccessfully to the Appeals Sub-Committee. On further appeal to the Labour Court the Court set aside the proceedings of the Appeals Sub-Committee and ordered a rehearing of the appeal by properly appointed appeals sub-committee as set out in Section 9.1. of Code of Conduct. The Respondent complied with the Court Order. The Applicant however was aggrieved. He felt that the Respondent had not complied with the Labour Court order. He therefore sought through an application filed on 9th September, 2013 to compel the Respondent to so comply. That application was however dismissed by the Labour Court on 14th March 2014 for lack of jurisdiction on the part of the court to grant the relief as sought.

The decision he sought to review having been made on 29th of August, 2013 the Applicant noted the present application for condonation of late noting of an application for review.

On the date of hearing Respondent counsel took a point in limine that the application, not being in Form LC 1, there was no valid application before the Court. The Court was urged to follow the approach taken in other labour matters and strike off the matter. The Court dismissed the point of limine on the basis of substantial compliance Applicant being a self-actor.

The factors to be considered in an application of this nature i.e. for condonation are basically the following; extent of delay, reasonableness of the explanation thereof, prospects of success an appeal.

The explanation tendered by the Applicant for the delay which amounted to 7 months was simply that as a self-actor he had erroneously believed that he could file an ‘application for an order to compel’ which application was later dismissed by the Labour Court for lack of jurisdiction. It was his submission this error on his part contributed to the delay as he only managed to file his application for condonation after the judgement which was handed down on the 15th of March 2014.

The Respondent in response submitted that Applicant was not a typical self-actor. He had successfully demonstrated in previous proceedings that he was well conversant with the procedures and the Rules in the Labour Court. The Respondent had in any event as early as October 2013 pointed out to Applicant the futility of pursuing the application instead of either appealing or seeking review against the decision of the Appeals Sub-Committee. It was Respondent’s submissions that the explanation tendered was therefore not plausible.

The delay in this case was of 7 months. Although it appeared long it was not in my view inordinate. The explanation tendered was however not an unreasonable one considering that the Applicant was a self-actor. He may have genuinely believed at the time that the procedure he had taken was the correct one. He may have also felt that he needed to be advised by the Court itself rather than the Respondent that the procedure followed was wrong. This is clear in that after the judgement by the Court was handed down on the 15th of March 2014, he immediately thereafter filed an application for condonation on the 21st of March, 2014.

The deciding factor, however after having given Applicant benefit of the doubt on the first two factors was the issue of prospects of success. The Applicant had submitted in his founding affidavit the grounds on which he believed he had good prospects on appeal. He simply indicated as follows;

“13. The evidence of some officials visiting some members

of the workers committee at odd hours of the night is prime evidence of mala	fides on the part of the Respondent.

14.	The attempt by some officials of the Respondent to attempt an out of court settlement is prima facie evidence that the Respondent acknowledges its unlawful actions will never pass the legal tests before a court of law.”

In regards the proposed first ground of review the Applicant raised the issue that there was evidence of Respondent’s officers visiting members of Workers Committee. He did not go on to suggest how this fact which was in any event not an established fact had influenced the Workers Committee in their decision-making. The Applicant also failed to establish the issue of prejudice. It is trite that in order for a procedural irregularity to vitiate disciplinary proceedings one has to establish prejudice. On the proposed second ground for review the submission that there was an attempt by Respondent officers to reach an out of court settlement did not in my view constitute a valid ground for review. It simply had no bearing on the actual disciplinary proceedings that the Applicant sought to impugn.

It was on this basis l found that the Applicant had shown no good cause for condonation to be granted. I consequently dismissed the application.

Dube, Manikai & Hwacha – Respondent’s legal practitioners