Daniel Majoni v Chirumani Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/100/14
HELD AT HARARE 8TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/100/14

HELD AT HARARE 8TH NOVEMBER 2013		CASE NO LC/CON/H/94/12

In the matter between:-

DANIEL MAJONI						Appellant

And

CHIRUMANI RURAL DISTRICT COUNCIL		Respondent

Before The Honourable L Kudya, Judge

For Appellant		J  Chaka (Trade Unionist)

For Respondent		H Mutasa (Legal Practitioner)

Kudya, J:

This is an application for condonation of the late noting of an appeal by the applicant against the respondent’s order where its Disciplinary Committee dismissed the applicant on allegations of breaching the respondent’s Code of Conduct.

Facts of the case are that applicant who was in the respondent’s employ as a roads supervisor was charged with a breach of the respondent’s Code of Conduct.  It was alleged that he had disseminated prejudicial statements about the respondent to 3rd parties without authority.  He was brought before a Disciplinary Committee which found him guilty and dismissed him from employment.  He appealed internally at the first level of appeals without success.  He was meant to appeal to the final level of internal appeals but did not do so citing unavailability of the minutes of the hearing from the respondent timeously.  When he found himself out of the stipulated appeal timeliness he then lodged the instant application.  In the instant application he is seeking that the court condones his late filing of his appeal as well as to allow the appeal to be dealt with by the Labour Court not withstanding the fact that he did not exhaust his internal remedies.  The arguments which he relies on the  instant application are to the following effect:-

The respondent’s Code of Conduct does not have provisions for seeking condonation of the late noting of the appeal to the Human Resources Manager which is the last appellate level within the internal disciplinary structures at the respondent’s.  to that extent he argues that his remedy therefore lies on direct relief from the Labour Court by way of instant application.

The delay in appealing internally or even to the Labour Court was not of his making but rather due to the respondent’s conduct where it delayed on giving him the full record of his disciplinary hearing despite his repeated requests.

Whilst conceding that after receiving the full record he delayed further to seek condonation, he also places the blame or his then unionist representative who he claims when he instructed him to act on the matter timeously delayed and left unceremoniously from the union which he used to work for.

On the merits of the case he says he has a strong case on the merits.  His argument is that he had a duty to disseminate the information which he did given the relationship between his employer and the third party and also taking into account that as party of his duties he ……… the 3rd party on explanation as to hear his employer was asking the funds which were disbursed for read maintenance.  In the result he prayed that the application succeeds and that he be allowed to file his appeal with the Labour Court.

The respondent opposed the application.  Its reasons were the

following:

Applicant did not advance good and sufficient explanation for his failure to note his appeal and timeously is that if reasons delay he however should have delayed further to file appeal just after receipt of the reasons, numerous demands for reasons are bore denials not backed by evidence and his representative and himself took a casual approach to the matter results in his default.

Applicant’s charges on appeal are week because in his defence he did not deny that the wrongfully communicated with the 3rd party on information prejudicial to respondent further that there is no factual basis upon which he could contend that respondent did not take into account circumstances which led to the misconduct.

In the premises respondent prayed that the application be dismissed

with costs as in its view the application lacked merit.

The law applicable to the issues to be decided on this application is settled.  In essence of major issues are at play reasons for the default and prospects of success see case of Janson v Acavaks  1993 (1) ZLR 216 (S) where the following was stated;

“In determining whether or not, in a given case good case for condonation has been shun, the following factors must be considered

degree of non-compliance with the rules

the explanation thereof

the prospects of success on the merits

the importance of the case

the degree of prejudice to the respondent

the convenience of the court and

the avoidance of unnecessary delay.”

Applying the above legal principles to the facts of this case 2 major

issues fall for decision.  These are whether the explanation for the delays given by the applicant are merited.  Further the court also has to rule on whether case is one which deserves the application to be granted taking into account the prospects of success on the main appeal.

In view of the point at the outset which was raised about exhaustion of domestic remedies.  It is pertinent to depose of this part first before dealing with the main merits of the application.  Applicant conceded in his submissions that or deed it is trite law that domestic remedies be exhausted before approaching a higher tribunal.  He however hastened to mention that failures to exhaust the internal appeals structures was not by design but by circumstances.  This is so because firstly he did not have the full record of proceedings to use for the appeal.  Secondly the respondent’s Code is silent on the internal appeal body’s powers in respect of condonation of late noting of an appeal to it. Respondent did concede that the Code is flawed on that respect but maintained that by nature of the appeals board being a quasi judicial body appellant ought to have noted that it would be seized with the same powers that any tribunal would have in the case of a party falling fowl of the timeliness provided.  In this respect it argued that applicant should still have applied for condonation before the internal appeals body.

Taking into account that applicant is not a legally …………………….. person the court was prepared to indulge him in his failure to decipher the fact that he could properly lodge an application for condonation before the appeals body in the court’s view the domestic remedies argument therefore fails.

On the main merits of the application respondent argued correctly and cited extensive authority for the preposition that in seeking condonation a party has to explain both the delay on filing the main appeal review and at same time explain the delay in seeking such condonation.  In instant case applicant says got reasons for the hearing determination late hence could not file appeal on time.

Further he says he fell into the trap of instructing a representative who also did not act diligently to lodge the appeal or at least explain the delay.  It is worth noting from ………………………… cited in the parties’ paper that there is no set standard for what can be deemed reasonable delay or ………………… reasons for delay in each case has to be decided on its own merits.

Facts of instant case seem to speak to a dilatory approach by the applicant especially after he had received the full record which he says was waiting for from respondent whilst it is not excusable that appellant fell into further error by engaging on unreliable representative the final answer lies in the cumulative appeal of the lack of diligence or the prosecution of the appeal and the possible appeal merits.

The law is clear that a …………………… explanation can be benefited up by strong prospects and result or grant of relief where it is sought.  On the facts of or ………….. case the record is replete with evidence that the applicant’s appeal is probable.

This is so when are …………………….. the  ………………….. between the respondent and the party to allow the applicant communicated the information which led to his dismissal.  If the appellate court finds that applicant owed the 3rd party a duty of care by explaining how public funds were being used by the respondent it means that casts the prospects of success or a higher plane …………………………………. from the above it is clear that ever though the applicant case snacks of lack of diligence in the ………………….. of his appeal the appeal has brought prospects.  The cumulative effect is that the applicant should be given a chance to have his day on court on the main appeal the delays notwithstanding.

IT IS ORDERED THAT

Application for condonation of late noting of appeal being with merit it be and is hereby granted.

Applicant is to file his appeal with the formally with 7 days from the date of receipt of this order where after the rest of the processes will follow suit.

Not order as to costs.

L KUDYA

JUDGE