Godwin Muzavazi v Leopack Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/366/16
HELD AT HARARE 12 MAY 2016
CASE NO
JUDGMENT NO LC/H/366/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/366/16

HELD AT AHARARE 12 MAY 2016				CASE NO LC/H/REV/04/15

& 10 JUNE 2016

In the matter between:

GODWIN MUZAVAZI					Applicant

And

LEOPACK TRANSPORT				Respondent

Before The Honourable E Muchawa, Judge

For Applicant			C Chigwada (Trade Unionist)

For Respondent		E Ndlovu (Legal Practitioner)

MUCHAWA, J:

At the hearing of an application for review I reserved my ruling on points in limine raised by the respondent.  This is it.

The agreed facts are that the applicant was employed by the respondent as a staff bus driver on a three months fixed term contract with effect from 15 January 2014.  The last such contract signed by the parties was from 1 July 2014 to 31 September 2014.  No contract was signed on 1 October until 9 December when the respondent approached the applicant to sign a new contract.

The applicant who believed he had now become an employee on a contract without limit of time due to the non-timeous renewal of the fixed term contract, refused to sign the contract.

A meeting was convened on 9 December 2014 to deliberate on this issue.  The minutes of same are on record page 19.  The applicant considers these to be minutes of a disciplinary hearing whereas the respondent says they are minutes of an engagement to inquire into the reasons and way forward regarding the applicant’s refusal to sign the renewal contract.

I wish to reproduce the contentious document which appears on respondent’s letter head.

“MINUTES OF A DISCIPLINARY HEARING

In attendance

Agenda

DISCIPLINARY HEARING FOR MR GODWIN MUZAVAZI

Minutes

The chairman opened the hearing by giving brief background of the dispute between Leopack and Godwin Muzavazi with regards to his contractual relationship with the organisation.

Charges levelled against Godwin Muzavazi

Refusal to sign new contract

Charge:

Mr Godwin Muzavazi is refusing to sign a new contract that he was offered by

Leopack as a staff bus driver citing delays in being issued with one.  His contract was set to have been renewed by 1 October 2014 and four attempts to get it signed have been turned down by the driver.  Workers Committee members including the chairman have attempted to speak to the driver about signing but he vehemently declined to sign.  Efforts by senior management have also not been successful.  The committee cited a voidable contract as there was no link or relationship between themselves and the driver.  The driver received all his full monthly salaries during the period of refusal to sign as the employer deemed his services were still valuable.  It was also concluded that at law it was illegal to be in a relationship where the offer and acceptance rule was not given the due attention and signatures from all parties been appended as consent.

The hearing was declared over at 11.00 hours.

Signed …………………………………….

Minutes”

On the same day, the operations manager wrote a letter of termination of applicant’s employment with effect from that 9 December 2014.

On 10 December 2014, the applicant appealed to the Chief Executive Officer primarily on the basis that the disciplinary hearing committee had failed to discipline him in terms of the relevant Code of Conduct for the Transport Industry S.I. 67 of 2012.  In particular, it is alleged that he was not given notification to attend a hearing, the charge levelled against him is non-existent and that the disciplinary committee was not properly constituted.  Further, it is alleged he was not informed of his right to representation, no investigations were carried out and no mitigation was considered.

The applicant contended too that he was then under a contract without limit of time due to the operation of section 12 (3) of the Labour Act.

The managing director dismissed the appeal on the grounds that the applicant remained on a fixed term contract and the respondent had exercised the right to terminate such contract on notice in terms of section 12 (4) (d) of the Labour Act.

It was also found that there had been no disciplinary hearing but a mere inquiry into the circumstances surrounding applicant’s refusal to sign the new contract.  As such, it was found that the Code of Conduct was not relevant in the circumstances.

The managing director dismissed the appeal on 19 December 2014 and on 14 January the applicant lodged this application for review.  The lengthy grounds of review impugn the disciplinary hearing committee for not having followed the provisions of the Code of Conduct for the Transport Operating Industry S.I. 67 of 2012, as outlined above.  In addition it is stated that the Chief Executive Officer erred in failing to consider the irregularities by the disciplinary committee.

The points in limine raised are;

That the application for review is improperly before me as the applicant is questioning the chief executive’s conclusion of fact and law and not the procedures employed.

That the decision of the disciplinary committee is not a decision in terms of Code of Conduct and the application is therefore improperly before me.

That the application for review in respect to the disciplinary committee decision is out of time and since there is no application for condonation, then this should be dismissed.

I deal with each point below

Whether the application for review is properly before me

It is the respondent’s contention that no disciplinary hearing was conducted and that the title and form of the inquiry minutes was informed by pro forma forms used at respondent’s workplace.  I was urged to look at the substance of the minutes which have no finding against the applicant to conclude that this was a mere inquiry into the circumstances surrounding the applicant’s refusal to sign the offered contract of employment.

Further it is argued that the contract of employment was not terminated pursuant to the inquiry but in terms of section 12 (4) (d) of the Labour Act and that the applicant was paid all his terminal benefits.

It is further contended that if the applicant noted this review in terms of the Code of Conduct following the dismissal of the appeal, then he had used a wrong procedure as section E 3 of the relevant Code provides that an appeal against the decision of the Chief Executive Officer lies with the Labour Court.

The applicant referred me to the contents of the minutes to insist that what was held was a disciplinary hearing and there are procedural irregularities.

I believe this is a case in which I should be guided by the substance of the minutes and not their form.  What is clear is that the minute taking was influenced by the practice where there is a dispute between employer and employee.  There is however no finding made against applicant except a finding of fact that the applicant refused to sign a new contract despite efforts at various levels and a conclusion at law that the respondent had no obligation to continue in the contract.  I find therefore that there was no disciplinary hearing.  (See Phias Marunze v Lobels Brothers SC 96/02).

In ground of review 2.9 the applicant is questioning the conclusions of law and fact by the chief executive officer.

I am persuaded that in such a case the proper procedure is to lodge an appeal and not an application for review.  City of Harare v Zvobgo  2009 (1) ZLR 218 at 224 and Herbstein and Van Winsen, Civil Practice of the High Court of South Africa , 5 ed at p 1271.

Having found that there was no disciplinary hearing and that the proper procedure was an appeal, I find that the application for review is improperly before me.

Whether the application is out of time

The respondent argues that the application for review should have been filed within 21 days of 9 December 2014 as the applicant is querying the procedures of the disciplinary committee from a reading of the grounds of review.  Such application is said to have been filed on 14 January 2015 instead of by 2 January 2015.

The applicant insists that the application was timeously filed as he reckoned the time from the chief executive officer’s decision of 19 December 2014.

Rule 16 (1) of the Labour Court Rules S.I. 59 of 2006 provides that review proceedings should be filed within twenty one days from the date the proceedings to be reviewed are concluded.

Rule 4 of the Labour Court Rules provides that in a computation of time, a Saturday, Sunday or public holiday shall not be reckoned as part of the time prescribed.

A reading of the grounds of review 2.1 to 2.8 show that the applicant is concerned with the decision of the “disciplinary committee which concluded its business on 9 December 2014.  In computing the time I have excluded weekends and public holidays and find that the application for review should have been filed by 12 January 2015.

By filing the application for review on 14 January 2015, the applicant was out of time.  He did not seek condonation.  As no condonation was sought the application is not properly before me.  Forestry Commission v Moyo 1997 (1) ZLR 254 SC.

Accordingly the points in limine are upheld.  The application for review is struck off with costs.

Mabundu Law Chambers,  respondent’s legal practitioners