Henrietta Mutandiro v Premier Services Medical Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/97/14
HELD AT HARARE ON 10THSEPTEMBER, 2013
CASE NO. LC/H/130/13
And 28th FEBRUARY, 2014
JUDGMENT NO LC/H/…./14
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IN THE LABOUR COURT OF ZIMBABWE		                   JUDGMENT NO LC/H/97/14

HELD AT HARARE ON 10THSEPTEMBER, 2013 		CASE NO. LC/H/130/13

And 28th FEBRUARY, 2014

In the matter between

HENRIETTA MUTANDIRO					Appellant

And

PREMIER SERVICES MEDICAL INVESTMENTS		Respondent

Before The Honourable B.S. Chidziva: Judge

Appellant:	Ms H. Mutandiro (In Person)

For Respondent :	Mr O. Mutizanadzo (Legal Practitioner)

CHIDZIVA, J

The Appellant is appealing against the decision of the Appeals Committee. The grounds of appeal are as follows:-

“The Respondent erred by failing to produce minutes of the Appeals Committee. The ‘purported’ minutes ‘even’ determination are mischievous and calculated to cause miscarriage of justice. The ‘purported’ admissions in the ‘so called minutes’ are all a product of malicious falsehoods contradictory to the Appellant’s grounds of appeal before the Appeals Committee and a biased and futile effort to uphold traverse justice. The recordby the Respondent is misleading and not reflective of the proceedings.

The Appellant reinstates her grounds of appeal without amendment for a more balanced consideration by this Honourable Court. The Respondent misdirected itself by failing to fully apply its mind to the case before them.”

The Appellant in the notice of appeal prayed that this Court reverse or set aside the decision, order or action appealed against and if appropriate substituted its own decision or order.

The Respondent in response told the Court that;

Appellant used the wrong procedure as she should have filed an application for review instead of appeal.

The grounds of appeal are factual and not points of law

The minutes of appeal were given to the Appellant

The Disciplinary Committee did not leave out key exhibits which would have resulted in a different finding.

The Appeals Committee judiciously dealt with the new evidence that the Appellant produced during the hearing.

The verdict of dismissal was fair in the circumstances.

The allegations were not fabricated.

The Appellant was alone on duty at the time when the incorrect results were entered into the system and thus she will still be guilty of negligence because she should have left her machine unlogged for one to enter her system.

Appellant agreed to be bound by Respondent’s Code of Conduct.

On these ground the Respondent told the Court that the matter should have been referred for review. The Respondent therefore prayed that the Appeal should be dismissed with costs.

It is common cause that;

Appellant was employed by the Respondent on locum

On the 3rd of October 2012 at Premier Clinical Laboratories an indeterminate HIV result was entered and authenticated as positive, before confirmation of the results from Lancet Laboratories South Africa.

Before this Court gets into the merits of the case the Court is going to deal the point in limine that has been raised by the Respondent. On page 2 of their heads of argument the Respondent told the Court that;

“It is respectfully submitted that the appeal was improperly made and is therefore improperly before this Honourable Court as it is based on factual findings and reviewable grounds.”

Fikilini v Attorney General 1990 (1) ZLR 105 at page 109 described reviewable grounds as follows:-

“(i)	absent of jurisdiction on the part of the tribunal or authority consent.

Interest in the course, bias, malice or corruption on the part of the person presiding over the Court or Tribunal Consent, or the Authority Concerned.

Gross irregularity in the proceedings or the decision”

Appellant in her grounds of appeal has alleged;

“…………… malicious falsehoods ---------- and biased and futile effort to uphold traverse justice.”

Section 98(10) of the Labour Act [Cap 28:01] states that all appeals to the Labour Court should be based on questions of law.

GUBBAY C.J. in the case of Muzuvavs.United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 220 D – F described the question of law as follows;

“(a) 	a question which the law itself has authoritatively answered to the exclusive of the right of the Court to answer as it thinks fit in accordance with what is considered to be the truth and justice of the matter.

(b)	a question as to what the law is. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter.

(c)	a question which is within the province of the judge instead of the jury

The Appellant did not raise any points of law. She raised points of facts on the following facts;

That the allegations were fabricated

That minutes of the Appeals Committee were incorrect

The time she logged out

Exhibit 5 which the Disciplinary Committee relied on

In the light of all this it is this Court’s view that the appeal lacks merit. The appeal is also improperly before this Court as it is based on reviewable grounds .

IT IS THEREFORE ORDERED THAT

The appeal is dismissed

Each party to bear its costs

Matizanadzo & Warhurst – respondent’s legal practitioners