Evans Betera v Balmain Stores (Pvt) Ltd t/a N. Richards

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/105/2021
HARARE, 15 JULY 2021
CASE NO. LC/H/21/20
AND 30 JULY 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/105/2021

HARARE, 15 JULY 2021	 				CASE NO. LC/H/21/20

AND 30 JULY 2021

In the matter between:

EVANS BETERA							APPELLANT

versus

BALMAIN STORES (PVT) LTD T/A N. RICHARDS		RESPONDENT

Before The Honourable Manyangadze J

For the Applicant	:	 Mr S. Muhambi  (Trade Unionist)

For the Respondent	:	 Mr N. Chidembo (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of the Negotiating Committee for the National Employment Council for the Commercial Sectors (Negotiating Committee) handed down on     10 December 2019. The Negotiating Committee upheld the conviction of the appellant on a charge of misconduct levelled against him, and his consequent dismissal from employment.

The brief facts of the matter are that the appellant was employed by the respondent as a Till Operator. He was charged with misconduct in terms of the National Employment Council for the Commercial Sectors Code of Conduct, for charging goods using another Till Operator’s password, which he had unlawfully accessed.

On 25 February 2019, the Designated Officer who held the initial disciplinary hearing found the appellant guilty as charged and referred the matter to the employer. On 2 September 2019, the employer found the appellant guilty and imposed a penalty of dismissal.

In a determination handed down on 21 August 2019, the Local Joint Committee upheld the decision of the employer. The appellant appealed to the Negotiating Committee, the final level of the National Employment Council appeal process. The appeal was dismissed. This led to the appeal to this court.

The respondent has raised a point in limine to the effect that the notice of appeal is fatally detective. It is defective in that;

(i)	It is not on form LC 4 as required by rule 19 (1) (a) of the Labour Court Rules, 2017.

(ii)	The relief sought is incompetent.

(i)  Use of Wrong Form

The respondent avers that Rule 19 (1) (a) makes the use of Form LC 4, in the filing of an appeal, a mandatory requirement.

The respondent has pointed out that the appellant filed two separate pleadings, all constituting a notice of appeal. This, according to the respondent, is alien to Form LC 4. Such non-compliance with the prescribed form constitutes a fatal irregularity. In this regard, the court was referred to the case of Jensen v Acaralos 1993 (1) ZLR 216 (S), where it was held that a notice of appeal which does not comply with the rules of the court is fatally defective.

On the other hand, the appellant relied on rule 47. Rule 47 (1) (2) of the Labour Court Rules allows for modifications to be done to prescribed forms. The appellant contends that the form he has used is substantially compliant with form LC 4.

A look at Form LC 4 shows that it is a simple and straightforward document. It basically has three components. Firstly, there is the notice, written as;

“TAKE NOTICE THAT THE Appellant hereby appeals against the attached arbitration award/determination/dismissal dated ……. day of ………….. 20………….”

Secondly, immediately below the notice, is a portion captioned;

“GROUNDS OF APPEAL (must be concise and precise)”.

Thirdly, there is the relief portion, captioned;

“Wherefore appellant prays for: ……”

A look at the Form used by the appellant shows that all the above fundamental components of the form are there, with the exception that the grounds of appeal are separately attached. The Form refers to the attached grounds of appeal. Although it is not in the exact format and wording in Form LC 4, it is, in my view, substantially compliant. It cannot be said to be alien, as contended by the respondent.

Whilst I find the appellant’s failure to use the exact Form, as prescribed, undesirable and censurable, I am not prepared to strike off the appeal solely on that basis.

(ii)	Incompetent Relief

The second aspect of the point in limine is however, different. There can be no talk of substantial compliance when the prayer is defective. Under the third component of the Form, headed “PRAYER” the following is written;

“Appellant prays for an order of reinstatement with full benefits.”

This violates almost everything the authorities have said on how the relief sought should be expressed in a notice of appeal. The relief should express the following essential elements;

The appeal be allowed.

The decision of the tribunal a quo, in this case the Negotiating Committee, be set aside.

The decision of the tribunal a quo be substituted with the following (here the appellant states what should happen to the decision that found him guilty and dismissed him from employment.)

This is what the Supreme Court clearly highlighted in the cases of Sarah Ndlovu & Anor SC 133/02, Fadzai John v Delta Beverages Limited SC 40/17.

In Fadzai John v Delta Beverages, supra, Guvava JA stated, at p 4 – 5;

“It has been emphasized in several judgments of this court that the rules require that that prayer in the notice of appeal must exact in nature. This matter came to the Labour Court as an appeal from a determination of the disciplinary committee. This application is to appeal against the decision of the Labour Court. In seeking the setting aside of the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing.

…

In this case the applicant not only failed to pray for the success of the instant appeal but also failed to highlight what order he seeks to substitute in the event that the appeal is allows.”

In casu, there is no compliance with this basic requirement. The relief sought is fatally defective. As it is an integral component of the notice of appeal, it means the notice of appeal is fatally detective. The proper course of action is to order thatt the appeal be struck off the roll.

In the circumstances, it is ordered that;

1.	The respondent’s point in limine be and is hereby upheld.

2.	The appeal be and is hereby struck off the roll.

3.	The appellant bears the respondent’s costs.

Kantor & Immerman, Respondent’s Legal Practitioners