Ester Gambakwe v Gain Cash and Carry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 27 SEPTEMBER, 2024
CASE NO LC/H/722/24
In the matter between:-
---------


IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H//2024

HARARE, 27 SEPTEMBER, 2024			  CASE NO LC/H/722/24

In the matter between:-

ESTER GAMBAKWE						APPLICANT

GAIN CASH AND CARRY 					RESPONDENT

Before the Honourable Kudya J

For the Applicant			K. Tambanewenyu (Legal Practitioner)

For Respondent			L. Muchanyukwa (Human Resource Manager)

KUDYA, J:

This an application for condonation for late noting of appeal and review of the decision leading to the appellant’s loss of her job with the respondent employer following disciplinary proceedings where she was accused of having engaged in conduct which was inconsistent with the dictates of her employment.

On the date of hearing of the application, the parties requested that the matter be decided based on the papers filed in IECMS.   This judgment is therefore written based on the papers filed in IECMS.

The background to the application is that, applicant who was in the respondent’s employment as an operations executive was charged with misconduct.  The conduct complained about can be summarised as follows:

Violation of standard operating procedures resulting in losses to the company.

Creation of parallel structures

Poor staff management.

Following disciplinary proceedings, she was found guilty as charged and penalised with dismissal.  She appealed internally without success.  She then appealed to the Labour Court within the prescribed time lines but the appeal could not be determined and concluded because she failed to file heads of argument on time. Such a delay led to a dismissal of the appeal. She attempted to resuscitate the appeal through a condonation application.

Condonation relief was resisted by the employer who challenged the Union representation which applicant had then. The representation irregularity caused her to withdraw the condonation application. An order by consent was consequently handed down withdrawing the condonation application.

Applicant is still keen to have her appeal determined. She has added to the appeal an application seeking to have the proceedings leading to her job loss reviewed.  To that end she filed the application for condonation for late noting of an appeal and an application for review and extension of time within which to file the same. The respondent employer is opposed to the grant of condonation relief.

Both parties in their papers file a numerous points in limine which they seek to have the court determine.  The net import of the points in limine is, as discussed below:-

Applicant’s points’ net result is for the court to grant the condonation application as an unopposed application.  Respondent’s points’ net result is to have the application dismissed for being in breach of the court rules.

The summarised points from either party are set out below:-

Applicant’s points in limine.

Respondent filed a response instead of an opposition to the matter.  It did not use form LC3 of the rules

Respondent filed 2 oppositions thus confused the  applicant.

The uncommissioned affidavit complained of by the respondent is not for the condonation application.

There is no composite application for condonation and for review before the court.  It is simply a condonation application for late noting of appeal and review.

Draft order on page 243 sets out clearly that applicant is seeking condonation relief only.

To date, none of the applications made with the Labour Court has been dealt with on the merits of the condonation application.

Respondents points in limine.

Delay from the date of withdrawal of the initial condonation application to the date of the instant application is a 35 day delay which has not been explained by the applicant.

The applicant’s appeal and review are out of time.  The 16 month delay should be adjudged sluggish on the applicant’s part.

Applicant is approaching the court with dirty hands.  She has not yet settled the costs of the withdrawn matter.  She should therefore not be heard until she purgses her contempt.

She has lied on some of the dates so she should not be granted relief on the basis of lies.

She has sought defective relief.  She filed 2 draft orders which cannot be granted simultaneously.

It is settled that where points in limine are raised, the court should rule on them. Heywood Investments Pvt Ltd v Zakeyo 2013(2)ZLR20.In the case at hand, all the points raised by either party are not dispositive of the critical issue calling for determination which IS whether condonation should or should not be granted.  The success of either set of the points would only result in a technical disposal of the matter as the matter would still resurface for the determination of the critical issue.

In keeping with the spirit of Bhunu JA’s judgment in Mapondera v Freda Rebecca Gold Mine Holdings SC81/22, it is the court’s considered view that, the success of any of the points would unnecessarily lengthen a determination of the critical issue and thus fall foul of the provisions of S2A of the Labour Act.  The Labour Court would be abdicating its core function if it is dogged by resolving matters based on technical objections which have become fashionable for litigants See Ndebele v Ncube 1992(1)ZLR288. It is the court’s view that the justice of the case at hand dictates that the condonation application be determined on its merits.  In that spirit, all the points in limine by either party are dismissed without their singular ventilation.  The matter is thus to be concluded based on its merits.

On the merits plane, the law on condonation is settled See Jansen v Acavalos 1993(1) ZLR 21 for the tenets to be satisfied before the success of such an application.

Extent of delay and reasonableness of the explanation

In the case at hand, applicant is out by at least 16 months to appeal and to seek review.  Such a period cannot be styled short but it was characterised by applicant seeking to enforce her appellate and review rights recourse.  She has however failed to do so, resulting in her previous condonation application being deemed dismissed for late filing of heads of argument and the withdrawal of the same.

What is clear is that, she has not sat on her laurels to assert her rights.  It is granted that, the law helps the vigilant but not the sluggard. See Ncube (Supra) but as stated above her efforts to assert her rights albeit improperly demonstrates her vigilance. Her application therefore passes the 1st 2 tiers of condonation tiers.

It is settled that condonation is not for the mere asking.See Lunat v Patel SC142/21 and that the success of such on application is based on the cumulative success of all the tenets.Lunat (Supra)

Prospects

This is one of key consideration in the success or failure of condonation cases.  It need be stated however that at this point in time the court is not ruling conclusively that the intended review or appeal would (DEFINITELLY SUCCEED) (my underling).  All that the court needs is to be able to say that the intended appeal and review as set out has something that can detain the court,

Whether or not the review or appeal will definitely succeed, is not the function of the court sitting to condone a party for flouting the rules.  In the case at hand, the applicant says her disquiet about the procedure adopted by the respondent is that the disciplinary committee breached her right to be heard by (1) Adducing further evidence mid-hearing which evidence they had not availed her when they charged her so that she could competently prepare her defence, (2) She was invited to mitigate before a determination of the matter was made, this suggested a predetermined outcome of the matter consistent with a biased decision.

On the substantive plane her appeal is that her job loss was birthed by dearth of evidence as she was not favoured with the standard operation procedures which she was accused of  having beached, there was insufficient evidence to demonstrate that she created parallel structures to the detriment of the respondent and also that she managed staff poorly.

An assessment of the singled out issues shows that if they are merited there indeed is something which the appeal and review courts can engage with.  As to whether the appeal and review will ultimately succeed is a debate for another day.  The matter having potentially good review and appeal issues the condonation application should succeed.

The remaining tiers of condonation tenets are offshoots of the 3 principal tiers discussed above.  These are therefore just addressed in very few words as below;-

The case is important to both parties in that, once condonation has been granted the merits of the appeal and the review can be entertained.  The issue is also important to both parties in that a determination of the review and appeal will put to rest the different views which the employee and employer have as to whether their relationship continuation or  of severance should be confirmed or set aside.

It is convenient for the court to put to rest the critical issue dogging the parties which is the job loss.  The court should thus put that to rest by allowing the condonation application.

Finality to litigation See Chimpondah v Muvami HC H81/07.Such can only be achieved once the job loss dispute has been put to rest.  Such finality cannot be achieved by a technical determination of the matter.

The interests of justice in the ultimate thus favour the grant t of condonation relief.

Cost

It is settled that costs follow the cause. See Timba v Saruchera and others HC H 461/15. In the case at hand, it is on record that; applicant has not yet made good the costs of the withdrawn matter.  It would therefore be unjust to award her  costs on the success of the  instant condonation  application  In line with Rule 39(1) Labour Court rules SI 150/07 it is just and equitable that each party be made to bear own costs in this matter.  In the result, the condonation application succeeds.

IT IS ORDERED THAT

Application for condonation for late filing of an application for review and appeal and an extension of time within which to file the same be and is hereby granted.  Applicant is granted 10 days from the date of this judgment within which to file her appeal and review application.

Each party bears own costs.

Chinamatira, Jonasi, Nyambira & Tambanewenyu Legal Practitioners          Applicant’s Legal Practitioners