Gift Mubare v Halsted Builders Express (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 SEPTEMBER, 2024 & 4
JUDGMENT NO. LC/H/85/25 CASE NO. LC/H/718/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 SEPTEMBER, 2024 & 4

MARCH 2025

JUDGMENT NO. LC/H/85/25 CASE NO. LC/H/718/24

GIFT MUBARE	APPELLANT

Versus

HALSTED BUILDERS EXPRESS (PVT) LTD	RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- S.N. Muhambi, Legal Officer For the Respondent	- G. Chagonda, Legal Advisor

KUDYA J:

This is an appeal against the decision of the Negotiating Committee which upheld the decision of the Local Joint Committee in a labour dispute between the appellant employee and the respondent employer.

The background to the matter is that the appellant who was in the respondent’s employment as a Salesman was accused of having breached the National Employment Council for the Commercial Sectors Employment Conduct Code of Conduct and Grievance procedures Statutory Instrument 45 of 93. He was said to have offended the Code in Article 2 Group IV offences in 3 respects styled as such:-

Charge 1

Misuse of employer’s property- wilful or intentional loss/damage of employer’s/customer’s property regardless of the value of such respect. In this court it was alleged that he cut off 3m gauze wire, let the customer only pay for 1 meter of the wire and thus prejudiced the employer of the value of the remaining 2 meters.

Charge 2

Unsatisfactory work performance- lack of skill which the employee expressly on by implication holds himself out to posses. He was accused of having caused the missing of 1000m different thickness of ropes and 50 pairs various gumboots.

Charge 3

Dishonesty and related offences.

Following the allegations, the appellant was subjected to 2 hearings the 1st which he claims he was not favoured with the record of proceedings of such. At the 2nd hearing, he refused to respond to the allegations citing a variety of procedural irregularities which he claimed were attendant on the proceedings.

The proceedings went ahead despite his protest. He was subsequently found guilty and dismissed from employment. He appealed to the Local Joint Committee citing the procedural irregularities which he had raised at the shop floor level hearing. The Local Joint Committee dismissed his appeal. He then went on to appeal to the Negotiating Committee which equally upheld the guilty verdict and the dismissal penalty. Unhappy about the Negotiating Committee Decision he appealed to this court on the grounds summarised as below: -

Negotiating Committee erred to uphold the Local Joint Committee decision to dismiss fatal irregularities that were attendant on the matter.

Negotiating Committee erred to state that appellant did not deny the charge yet he denied that in the hearing.

Appointment letter does not make a designated officer but proof of appointment is needed.

In the result appellant prayed that the appeal be allowed with costs. He also prayed that he be reinstated to his original position with full benefits.

The respondent employer opposed the appeal on the bases summarised below: -

Negotiating Committee did not err. The designated officer was not obliged to give appellant the record of proceedings which had been abandoned. The letter of appointment stated that the designated officer had been appointed as per the Code so the Negotiating Committee did not err to uphold the Local Joint Committee decision.

This ground has no merit. The appellant refused to make submissions at the hearing so he waived his right to respond to the allegations. Appellant did not deny the allegations so the Negotiating Committee did not err to say appellant did not deny the charge.

This ground of appeal is defective. It is not clear and concise. It does not raise a question of law. It should be dismissed for being defective.

In the result the respondent employer prayed that the appeal be dismissed with costs.

The test for appeals is settled. See Nyahondo v Hokonya and others 1197(2) ZLR457. See also Hama v NRZ1996(1) ZLR664.It is also settled that the Labour Court will only entertain appeals to it on a point of law. See Section 98(10) Labour Act. The definition of a point of law is equally settled. See Sable Chemicals v Easterbrooke SC18/10.

Applying the legal principles from the above cited cases each of the appeal grounds is discussed below:-

Ground 1

A reading of this ground shows clearly that appellant is aggrieved by the procedure adopted by the employer in the handling of his matter. It is settled that grievances around process are challenged

as review and not appeal because appeals deal primarily with the substantive correctness of a decision. See the distinction between appeals and reviews, See Labor Act and Labor Rules. The court appreciates the fact that the appellant hopes that the Labour Court can dislodge the decision arrived at by the Negotiating Committee because he is of the view that he had sufficiently set out his review grounds before the Local Joint Committee so the Negotiating Committee should

have agreed with him. That is where his problem lies.

It is clear from the shop floor level proceedings that the substantive correctness of the allegations was not tested. To that end there was therefore no way the Local Joint Committee or the Negotiating Committee could have said that the appellant’s guilt be vacated. It is clear that for as long as the challenge on the procedural irregularities needed to be put right such could not cause appellant to get his job back.

It is settled that the correction of procedural irregularities does not result in an acquittal of a party who is accused of misconduct. See Air Zim v Mnensa SC 89/04. It was therefore not remiss for the Negotiating Committee to fail to find fault with the Local Joint Committee decision. Equally the Labour Court cannot reverse the guilty verdict and dismissal penalty in an appeal whose merits were not entertained.

What the appellant remained with was essentially a default judgment which is not appealable. See Zvinavashe v Ndlovu.2006(2) ZLR372. In any event appellant’s conduct of refusing to respond to the allegations which were read out to him amounted to a waiver of his right to appeal as he cannot appeal a decision given either in default of physical presence or default in respect of refusal or failure to answer to the allegations leveled against him See Zvinavashe Supra. For waiver See Chidziva V ZISCO Steel 1997(2) ZLR368 S.

Assuming for a while that the Local Joint Committee indeed agreed that procedural irregularities beset the matter the remedy did not lie in a reinstatement of the appellant but only a correction of what was purportedly wrong in the procedure. See Dalny Mine v Banda 1999 (1) ZLR220 (S).

The court also notes that under this ground the appellant quizzed the appointment of the Designated Officer. That as well if it had merit was equally not an appeal issue. Finally, the issue of the record proceedings of the hearing which appellant say he was subjected to at first is also a procedural challenge which does not entitle him to an acquittal on the alleged misconduct. The court therefore finds no fault at all with the Negotiating Committee’s decision as discussed above. The ground should therefore fail.

Ground 2

The record is replete with evidence that the appellant refused to answer to the charges hence the Local Joint Committee and the Negotiating Committee conclusion that he was not denying the charges. It is settled that if a party refuses to participate in the proceedings, he waives his right to challenge the outcome. See Chidziva (Supra) See also Moyo v Rural Electrification Agency SC4/14

It is clear that even though appellant remained physically present when his guilt was being determined he exercised his right of silence to his own detriment, in that, the decision on his matter decision was made in his default of his response. Such a decision cannot be appealed. See Zvinavashe (Supra). With this background, it was therefore remiss for the appellant to expect the Local Joint Committee, the Negotiating Committee or this court to say he was not guilty. The appeal ground is without merit so it should fail.

Ground 3

Respondent correctly observed that this ground is not clear and concise. In fact, the court wonders what exactly it is. It can therefore not be entertained by this court. Appeal grounds have to be clear and concise. See Kunonga v CPCA SC 27/17 The ground having failed the test for concise and precise appeal grounds the court has no business detaining itself with it. It should be struck off.

As regards costs. it is clear that respondent has been put out of pocket unnecessarily by the appellant who has mounted a hopeless appeal. Appellant therefore has to meet the costs of this appeal.

IT IS ORDERED THAT:

Appeal grounds 1and 2 being without merit in their entity they be and are hereby dismissed with costs.

Appeal ground 3 being improperly before the court on account of its defectiveness it be and is hereby struck off with costs.