Debra Nyamukondiwa T/A Koo Doo Mine v Lydia Chiutsi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 8 FEBRUARY 2024 & 21
JUDGMENT NO LC/H/128/2024
CASE NO LC/H/1034/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 8 FEBRUARY 2024 & 21

MARCH 2024

In the matter between:-

DEBRA NYAMUKONDIWA T/A KOO DOO MINE

LYDIA CHIUTSI

JUDGMENT NO LC/H/128/2024 CASE NO LC/H/1034/23

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant	G. Makwanya (Legal Practitioner) For the Respondent	K. Masasire (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the Labour Officer who held that respondent employee was unlawfully dismissed by the employer and that she was entitled to 36 months damages for loss of employment, payment of her leave days and payment of acting allowances due to her.

The appeal grounds are cited as follows:-

Labour Officer erred at law by

Granting on incompetent order of damages without considering the primary remedy of reinstatement

Granting unjustified 36 months damages

Going on a frolic of his own and determining issues of unpaid leave days and acting allowances when the crisp issue referred to him was that of unlawful termination of employment

Granting the claims for outstanding acting allowances in the quantum awarded based on the contract of the outgoing substantive mill manager which contract was not applicable to the 1st respondent

Failing to observe and appreciate that her salary was $200 and not $400

Failed to observe and appreciate that Lydia was being paid US$200 as acting allowance.

In the result the employer prayed that the appeal be allowed with costs and that the ruling by the Labour Officer be set aside.

In response to the appeal the employer maintained the following:-

There was nothing wrong in ordering a straight remedy of damages once the employer had indicated that it was no longer interested in reinstating the employment. This does not vitiate the order or determination made in that respect.

The damages were justified The employer did not show any defence to the claim of damages as an alternative remedy. Evidence was produced to show the damages claimed and how the employee tried to mitigate the loss The appellant before the court aquo did not claim of damages substantively. It justified stated that the claim of 36 months was fraudulent.

Cash in lieu of leave and acting allowance were part and parcel of the claims. It was also part of the issues to be determined. Such claims are paid on the claim of damages and there is nothing irregular about that. The ruling can not be faulted in that regard. The labour officer sic (DA) carefully analysed the facts before him.

Ground 4 is not here or there. It is not a ground of appeal. It is a factual issue and one can not appeal against factual issues and appellant did not demonstrate how it led to misdirection. The appellant partially conceded that at one point respondent acted that position. It is trite that this court can not interfere with factual finding of the court aquo.

GROUNDS 5 – 6

These are factual issues and they do not raise the question of law. The appellant is failing to come up with ground of appeal. The respondent is failing to understand what then is the ground of appeal. The respondent clearly demonstrated her salary and that it was clearly USD 400. The appellant conceded that respondent was also employed as the Mine Manager.

In the result the respondent prayed that the appeal be dismissed with costs on an autonomy client scale.

The respondent raised points in limine in her heads of argument and in the oral submissions in court. The 1st point was that the appeal was improperly before the court since it was filed out of time. She also stated that the appellant had irregularly cited the labour officer who was not supposed to be part of the instant proceedings. She finally stated that grounds 1 and 3 are review grounds not to be determined in an appeal. Each of the points in limine is addressed below:

APPEAL OUT OF TIME

The appeal in the instant matter is filed under Section 128 of the labour Act as inserted by section 36 of labour Amendment Act No 11 of 2023. This section reads as follows:-

“36 New Section Inserted in Cap. 28:01

‘The principal Act is amended by the insertion after section 127 of the following and the subsequent section shall accordingly be renumbered.

“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(5)(a) and 5(b) of the replaced provision, such draft ruling shall automatically be deemed to be judgement or ruling of the labour officer which for execution purposes shall be registered in the appropriate court:

Provided an employer shall have a right of appeal of the labour court within 30 days after the notice of registration”

It is the employee Lydia’s contention that in sync with the above cited amendment the labour officer’s decision attained judgment status calculating from the date of the amendment which is 14/7/23 when the deeming provision came into effect. It is her view that 30 days had to be counted from 14/7/23 and that such lapsed on 29/8/23. In her view therefore the appeal should have been filed latest by 29 August 2023. The instant appeal was filed on 13 December 2023 so in her view such an appeal was out of time and condonation should have been sought by appellant to clothe that appeal with regularity. It is therefore her conclusion that the appeal being improperly before the court for the reason that it is in flout of the time lines it should not be granted by the court.

In response to the point the employer argues that the proviso in question 128 obliges it to file its appeal within 30 days of the notice to register the determination. It is their view that since they filed the appeal within 30 days or the notice of registration stamped 6 December 2023 it was therefore within time to file its appeal and did not need to seek any condonation as suggested by the employee.

It is settled that when interpreting a statute the 1st test is to give words than plan grammar meaning See Interpretation Act No 1 unless to do so would result in an absurd result in which case purposive interpretation would have to be adopted. A plain reading of Section 128 shows that notwithstanding the fact that the ruling attained judgement status on the effective date the employer’s right of appeal only kicked in after the filing for registration of the order by the employee. It appears the law decided to extend the right of appeal to a time when registration intent would have been raised by the registration notification. Applying this test to the facts at hand it is clear that the employer was within time when it calculated its dies from the date of notification of registration. The point is therefore without merit and should be dismissed.

CITATION OF LABOUR OFFICER

This point was conceded by the employer so the concession put to rest the misjoinder complained about. Reference to the labour officer as a party to the proceedings is therefore expunged from the record.

Invalid appeal grounds 1 to 3.

On this point it is the employee’s view that these grounds are incompetent and for that reasons the appeal should be struck off. As regards this point the employer conceded that grounds 1 and 3 are indeed review grounds. Such put to the rest the debate about their propriety. As regards ground 2 the employee’s view was that such ground speaks to the merits of the matter so cannot be adjudged procedural. A reading of ground 2 shows that appellant is unhappy with the period of damages that was awarded. That surely speaks to their merits of the appeal and cannot be adjudged procedural. The point in limine vis ground 2 being without merit should be dismissed.

In the result the court rules as follows;

Point in limine 1 vis appeal out of time being without merit it be and is hereby dismissed.

Point in limine vs misjoinder having been conceded to it be and hereby succeeds. Reference to labour officer in the citation of the parties is consequently corrected to

read that matter is only between Koodoo Mine as appellant and Lydia Chiutsi as respondent

Point in limine vis irregular appeal grounds 1 and 3 having been conceded it be and hereby succeeds. Appeal grounds 1 and 3 are consequently struck off the record for being bad at law.

Point in limine vis appeal ground 2 being without merit it be and is hereby dismissed.

Appeal to be determined on the merits vs grounds 2, 4, 5 and 6

Each party bears own costs.

K. Masasire Law Chambers, Respondent’s Legal Practitioners