Charles Nyaeka v Harare Municipal Medical Aid Society

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IN THE LABOUR COURT OF ZIMBABWE
LJUDGMENT NO. LC/H/86/2024
HELD AT HARARE 29TH JANUARY 2024
CASE NO LC/H/665/23
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IN THE LABOUR COURT OF ZIMBABWE	LJUDGMENT NO. LC/H/86/2024 HELD AT HARARE 29TH JANUARY 2024		CASE NO LC/H/665/23 AND 29 FEBRUARY 2024

In the matter between

CHARLES NYAEKA	APPLICANT

And

HARARE MUNICIPAL MEDICAL	RESPONDENT MEDICAL AID SOCIETY

BEFORE THE HONOURABLE MAKAMURE J

FOR THE APPLICANT : MR E. CHIGOVA (TRADE UNIONIST)

FOR THE RESPONDENT: MR W. CHISHIRI (LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for condonation for late noting of appeal. It is opposed.

Preliminary Issue

At the commencement of the hearing , a preliminary issue was raised on behalf of the respondent. This was that the application was not properly before the Court because the applicant used a wrong forum. Mr Chishiri who appeared on behalf of the respondent argued that the applicant ought to have approached a labour officer for conciliation first before approaching this Court. This Mr Chishiri continued, was in view of provisions of The Labour Amendment Act No 11/23( Act 11/23) which brought in a new provision. Mr Chishiri argued that prior to the amendment referred to, the position was that in terms of provisi0ns of s 101(5) of the Labour Act , Chapter 28:01 (the Act) , the applicant would have been in the right forum. For that reason , the Court was called upon to strike the matter off the roll . The Court was referred to Mukarakate v Harare Municipal Medical Aid Society LCH838/23 a case of this Court where a similar matter was struck off the roll.

In response Mr Chigova who represented the applicant Argued that there is a difference between the duties of a labour officer and a designated officer. Mr Chigova submitted that the applicant is covered by the applicable national employment council ( NEC) and therefore cannot be referred to a labour officer. Mr Chigova further argued that the in authority referred to above, the employee in question was managerial and therefore did not fall under the NEC. That case was therefore distinguishable. Mr Chigova further argued that the present matter was properly dealt with in terms of s63(3)(b) of the Act and further that the Labour Amendment Act did not bring new jurisdictional changes to matters which are brought before designated agents. In support\of this stance Mr Chigova referred the Court to the case of Tafadzwa Sakarombe and Wonder v Montana Meat Carswell Meats (Private ) Limited SC44/20. Mr Chigova further argued that in terms of Statutory Instrument 93 of 2019 the right of

appeal lies with the Labour Court. For that reason , it was submitted on behalf of the applicant that he was properly before the Court.

In reply Mr Chishiri insisted that the applicant was not properly before the Court and further that the

Mukarakate case (above) he relied on was not distinguishable. S101(5) of the Act as amended by Act No 11/23 provides as follows:

‘(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section.’

AND S63 (3b) of the Act as amended by Act 11/23 provides as follows:

‘(3b) Subject to subsections (3c) and (3d) where a designated agent is authorised to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter during the first thirty days after the date when the dispute or unfair labour practice arose, but a labour officer may assume such jurisdiction (and exercise in relation to that dispute or unfair labour practice the same powers that a designated agent has in terms of this section) after the expiry of that period if proceedings before a designated agent to determine that dispute or unfair labour practice have not earlier commenced.(Emphasis added).

The above sections of the Act are clear. A labour officer ‘may’ assume jurisdiction. The provisions in those sections are not peremptory but directory. The applicant chose to approach this Court. He cannot be blamed for exercising his right in that respect. Further s92D of the Act which provides for appeals states as follows :

‘92D Appeals to the Labour Court not provided for elsewhere in this Act

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.’

S92D therefore empowers ‘a person ‘ to appeal to the Labour Court. Further still in the present case the matter was determined sometime in 2022. This was before the promulgation of the Amendment Act 11/23. It is trite that there is a presumption that legislation is not intended to be applied retrospectively unless this is specifically expressed. G-M Cockram in the book Interpretation of Statutes 3rd ed at page 124 writes: “The principle that , in the absence of expressed provision to the contrary , no statute is presumed to operate retrospectively is one recognized by the civil law as well as by the law of England. The lawgiver is presumed to legislate only for the future .’ Innes J in Mahomed NO v Union Government 1911 AD 1 at 8.”So in terms of the law as it was before the promulgation of Act 11/23 the applicant would have been entitled to appeal to the Labour Court. In terms of the law as amended the applicant is able to make a choice as to which forum to approach. A good example are the provisions of s36 which is part of the same amendment which introduced a new s128 which reads as follows:

‘128 Transitional provisions

(1) Where a labour officer made a draft ruling in terms of section 93(5)(c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93(5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgement or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court:  ‘(My emphasis)

The new s128 provides that a draft ruling which had not been registered with the Labour Court by the time that the amendment came into force “shall automatically be deemed to be a judgement or ruling of the Labour Officer.”( Emphasis added). This means that the Legislature made a specific provision which had retrospective effect on the rulings of labour officers which would have needed to be confirmed in order for them to be orders of the Labour Court and be registrable as court orders , to be exempted from the process. The two situations are different from each other. In S63(3b) and S101(5) the parties are not obliged to approach the labour officer. In the circumstances therefore there is no merit in the preliminary issue raised on behalf of the respondent. The  preliminary issue is dismissed.

Merits

It is trite that in order for an application for condonation to succeed, the following are some of the requirements which an applicant must satisfactorily explain:

The extent of the delay;

The reasonableness of the explanation thereof;

The prospects of success should the relief be granted.

See Viking Woodwork (Private) Limited v Bluebells Enterprises (Private) Limited 1998 (2) ZLR 249

(S) @ 251.

In the present case the applicant was dismissed from employment in July 2022. He left for his rural home in December that year where it was cheaper for him to live and be able to look after his ailing father and aged mother together with his own family which included his school going children. He came back to Harare in May 2023. In June 2023 , as he states in his founding affidavit ‘… I then contacted my former workmates whom I have been dismissed with and they told me that the labour court had introduced an online system which has eliminated the bulkiness of court costs.’ On the 27th of June 2023 he initiated the present application through his trade union of record. He also stated in his founding affidavit that he had lost hope about the case had his colleagues not told him about the new electronic filing system introduced by the Court. He delayed by a period of twelve months. The applicant argues that a delay of twelve months on his part is not inordinate under the circumstances of his case.

The applicant argues with respect to prospects of success that he enjoys prospects of success. This he says, is because among other things the offence he was convicted of allegedly occurred away from the respondent’s premises. He stated in his affidavit that he was found guilty when there was no “charge proffered to support the allegations against me.” He stated further that his employer , the respondent suffered no prejudice as a result of misconduct as it occurred outside its premises. He also relied on the advice he got from the trade union.

In argument before this Court Mr Chigova who represented the applicant emphasized the lack of finance which resulted in the applicant relocating to his rural home and how the new electronic system motivated the applicant into approaching them to assist him in filing the application. Mr Chigova argued that a period of twelve months was not inordinate . The Court was referred to the case of Frank Mupfumira v Harare Municipal Medical Aid Society LCH 37/23 as authority for the argument. Mr Chigova also emphasized the point that the respondent itself took ten months before it raised the charges against the applicant and that this should be found to be in the applicant’s favour.

In response Mr Chishiri argued that the applicant   was appropriately charged as reflected at page 72 of the record. Mr Chishiri further argued that the applicant does not dispute the charge. It was further argued on behalf of the respondent that the intended appeal was hopeless and that it should fail.

At page 72 of the record is a lengthy charge sheet containing allegations of violating s24(3) of Statutory Instrument 93 of 2019 in that the appellant conducted himself in a manner which was grossly inconsistent with the fulfilment of the express and implied conditions of his employment. The conduct complained of included ‘morally and socially reprehensible misdemeanours , ranging from smoking weed (dagga or marijuana)…’ This shows that there was in fact a charge preferred against the applicant. The record of proceedings shows that the applicant conducted himself in the manner alleged and that he was in the company of his workmates. This happened in Chinhoyi where the applicant and his colleagues attended a workshop funded by the respondent. After the workshop a party was held within the premises paid for by the respondent. So, the offence occurred within work related circumstances and environment. The applicant can therefore not suggest that this happened away from the respondent’s premises. While the applicant was physically away from the usual workplace, he was at that particular place and time at the instance of his employer. He was therefore under the control of his employer and was obliged to conduct himself in a manner that the employer expected of him.

In Rinos Terera v George Lentaigne Ingram Lock and Three Others SC 93/21 the Supreme Court stated that :’ It is settled that where no acceptable explanation for non-compliance with the rules has been given by an applicant seeking condonation for the late noting of an appeal, one must at the very least show very good prospects of success if the indulgence is to be granted.’

In Essop v S [2014] ZASCA 114 the court stated that …’In order to succeed therefore , the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.’ See also Dzvairo v Kango Products SC35/17; Bessie Maheya v Independent Africa Church SC 58-07.

It would appear in the present case that the appellant was really motivated by the new system of filing which was introduced at this Court. When he was dismissed , he must have been aware that if he wanted to appeal, he was supposed to do so within a period of twenty-one days from the date that he became aware of the dismissal. He could have immediately noted the appeal. I do not underestimate the devastating effects of losing a job but he could have noted the appeal before leaving town. It is not clear whether or not he would have made the application had he come back to Harare and found the same old system of filing still in place. It seems that he was excited by the new filing system and decided to try his luck. Thus, I find that the explanation for the delay is not satisfactory. Further the appellant had proper charges preferred against him. The record also shows that he made some admissions in addition to the evidence that was led against him. Resultantly I find that the prospects of success on appeal are slim. Thus, even had the explanation for the delay been satisfactory, the prospects of success would have  acted against his favour.

In view of the foregoing I find that there is no merit in the application. It fails. Accordingly, it is ordered that :

The application for condonation for late noting of an appeal be and is hereby dismissed with costs on the ordinary scale.

MESSERS SAUNYAMA , DONDO. RESPONDENT’S LEGAL PRACTITIONERS.