Israel Potera v Glenrise Investments (Private) Limited

### Preamble
IN THE LABOUR COURT OF
JUDGEMENT NO. LC/H/378/25
ZIMBABWE HARARE, 0CTOBER, 2025
CASE NO. LC/H/705/25
In the matter between:
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 0CTOBER, 2025

JUDGEMENT NO. LC/H/378/25 CASE NO.	LC/H/705/25

In the matter between:

ISRAEL POTERA	APPLICANT

AND

GLENRISE INVESTMENTS (PRIVATE) LIMITED	RESPONDENT

Before the Honourable G. Ziyaduma, Judge

For the Applicant	-V. Chidzanga, Legal Practitioner For the Respondent	-A. K Maguchu, Legal Practitioner

ZIYADUMA J:

This is an application for condonation of late filing of an appeal and extension of time within which to file an appeal in terms of Rule 22 (1) of the Labour Court Rules. The application is opposed by the respondent.

BACKGROUND

Applicant was employed by the respondent as the Operations Manager in July 2019. He later became the General Manager. In 2023, he became the Operations Executive reporting to the Managing Director. While serving in this capacity, he was suspended from work on 22 April 2025. He was then charged with two counts, firstly for contravening section 4 (a) of the Code the allegation being that he committed any act or omission inconsistent with the fulfillment of the express or implied conditions of the contract of employment and secondly, he faced an allegation of contravening section 4 (f) for gross incompetence or inefficiency in the performance of his work.

After the disciplinary hearing convened by the Hearing Official at the work place, he was found guilty and dismissed from employment. After his dismissal, he appealed to the Appeals Committee which upheld his dismissal. He then referred the matter for conciliation to a Labour Officer in terms of section 8 (6) of Statutory Instrument 15/2006 on 14 May 2025. A certificate of no settlement was issued after which the matter was referred for Arbitration.

At the time of the referral of the matter, applicant was being represented by Chirimuuta and Associates. The lawyers later renounced agency in June 2025. They gave the reason that they were conflicted in the matter. The applicant then engaged his current lawyers who upon assuming agency, advised him that his appeal to the Labour officer was incompetent in that the appeal was before a wrong forum. He was advised, after 14 months, to appeal to this court. Based on this advice, the applicant then filed this application.

POSITION OF THE PARTIES.

Applicant submitted that the delay in filing the appeal is not inordinate neither is it unreasonable.

He submitted that what caused the delay in filing the appeal to this court was that he was under the wrong impression that the matter was in the correct forum before the Labour officer. He averred that upon receiving correct legal advice, he did not waste time by filing for condonation before this court.

Applicant also contended that he has a reasonable explanation for the delay. He submitted that he received wrong advice from his erstwhile lawyers, who had advised that they lodge an appeal with the Labour officer. He submitted that when correct legal advice was obtained, he did not waste time in filing this application for condonation with this court.

He averred that he has strong prospects of success, hence moved the court to allow him to file his appeal so that he corrects errors at law that were made in the disciplinary proceedings, that led to his dismissal. His reasons for stating that he enjoys good prospects of success are for the first count, the charge did not disclose whether the applicant was incompetent or inefficient in the discharge of his duties. He thus submitted that the Appeals Committee upheld his conviction based on a defective charge.

He also submitted that the charge was also defective in that it did not state the express or implied conditions of the contract that were allegedly infringed. He submitted that no evidence had been submitted as to which terms and conditions had been infringed.

He also submitted that the Appeals Committee grossly misdirected itself in finding that the applicant had led the purchase of vehicles, when the applicant only had powers to make recommendations and his superiors had approved the purchases.

Applicant also submitted that the Appeals Committee grossly misdirected itself when it found that Zimbabwe Revenue Authority issued a warning letter to the Respondent due to the fact that applicant had not exercised due diligence in the performance of work.

Applicant further submitted that the Appeals Committee grossly misdirected itself in finding that the procurement of vehicles should have been handled by a procurement officer in the company when there was no Finance Executive who would have been responsible for procurement. Applicant averred that his involvement was due to the absence of the Finance Executive.

He contended that the Respondent will not be prejudiced if the application for condonation is granted.

He prays that the application for condonation of late filing of an appeal against the decision of the appeals committee which resulted in his dismissal from employment be and is hereby

allowed. He further prays that the Applicant be allowed to file his notice of appeal within five days of the date of the order. He further prays that each party should bear its own costs.

The Respondent on the other hand contended that the extent the delay of fourteen months is inordinate. It contended that the explanation for the delay is unreasonable.

It further contended that a mistake of law committed by a legal practitioner amounts to gross negligence and does not amount to a reasonable excuse. It further submitted that section 101

(5) of the Labour Act Chapter 28:01 gives authority to Labour officers to entertain appeals from disciplinary proceedings. It submitted that the decision to approach the Labour officer was correct in light of section 101 (5) of the Labour Act (supra).

It further contended that there are no prospects of success in this case. It submitted that the charges were very clear. It submitted that this is evident from the fact that applicant gave a detailed response to the allegations. It further averred that guilty employees should not escape consequences of misconduct through contestation on how a charge should have been drafted.

It further averred that there is no requirement for a charge letter to state the express or implied conditions of the contract that have been infringed. It submitted that what is required is that the misconduct must be defined with some specificity in the charge. It submitted that the charge letter was specific.

It further contended that during the hearing, the applicant did not raise the defense that the procurement officer was not in the employ of the Respondent. Resultantly, It contended that this cannot be raised on appeal in this court.

Respondent prays that the application be dismissed with costs.

SUBMISSION BEFORE THE COURT

Applicant argued that in deciding to withdraw the matter from the Arbitrator, he relied on Nicholas Mukarati v Pioneer Coaches SC 34/22 for the principle that a labour officer was not clothed with appellate jurisdiction over decisions of internal disciplinary hearings. It was further argued that the reason for the delay was plausible and reasonable hence the court was urged to condone the failure to note the appeal on time. It was submitted that upon receiving correct legal

advice, the applicant wasted no time as evidenced by his filing of this application for condonation before this court.

Relying on Dzvairo v Kango Products SC 35/17, the court was urged to take the view that even if it considers the reasons for the delay to be not satisfactory, the court should grant the application for the reason that prospects of success in the appeal are good.

The Respondent averred that the court should take due consideration of the delays and the explanation being given for it. It argued that in the absence of a compelling explanation for the delay, a lengthy delay should not be condoned. It argued that it took about 14 months for the applicant to approach the court for condonation. It was argued that the explanation for the delay betrayed the absence of a compelling explanation for the delay. It submitted that the court is being asked to condone applicant because his lawyer did not know the law and went to a wrong forum. It was submitted that lawyers may have different interpretations of the law but the interpretations must be reasonable. It was further submitted that the interpretation taken by the applicant was unreasonable hence should not be accepted by the court. It was also submitted that section 101 (5) of the Labour Act [Chapter 28:01] gives jurisdiction for labour officers to entertain appeals from decisions made under a code of conduct.

This court will now proceed to assess the submissions raised by the parties to the case.

WHETHER GOOD CAUSE HAS BEEN GIVEN FOR THE FAILURE TO COMPLY WITH STIPULATED TIME FRAMES WITHIN WHICH TO FILE THE NOTICE.

The main reason advanced by the applicant for failure to file the appeal within the stipulated time is that he had wrongly approached the labour officer on appeal. Applicant contended that the appeal was not supposed to be lodged with the labour officer but the Labour Court. It was argued that the labour officer does not have appellate jurisdiction in relation to completed disciplinary proceedings from the Code of conduct.

To assess whether this submission reflects the law, it is important to outline the provisions of

section 101 (5) of the Labour Act [Chapter 28:01]. It states thus;

‘Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings, whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section.’ (Emphasis is mine)

The proviso to section 101 (5) clearly states that any party aggrieved by the decision of disciplinary proceedings in terms of employment codes of conduct may appeal to the labour officer. It is therefore incorrect for a party to suggest that the labour officer had no jurisdiction to entertain appeals from disciplinary proceedings under a code of conduct. The power given to a labour officer is given by dint of law. The labour officer is therefore imbued with appellate jurisdiction in terms of section 101 (5) at the conclusion of the disciplinary proceedings. The argument by the applicant that approaching the labour officer on appeal was legally incompetent cannot be sustained. The ordinary grammatical interpretation of the proviso to section 101(5) shows that any party aggrieved by the outcome of disciplinary proceedings in terms of the code of conduct may appeal to the labour officer. Therefore, the decision to then withdraw the matter that was pending before the labour officer was ill advised. Once the applicant chose to appeal to the labour officer, he had to allow the processes set in motion to run their course before approaching this court. Failure to exhaust the processes that had already been set in motion makes the decision to change the forum unreasonable. This is because the applicant was before the correct forum imbued with powers to hear and determine the appeal. Applicant should not be allowed to forum shop, by abandoning unterminated proceedings before the labour officer. Applicant should first exhaust the appeal process before the labour officer before approaching this court. In any event, nothing stops applicant from reviving the abandoned appeal before the labour officer.

LENGTH OF DELAY

In Mapengo v Chitungwiza Municipality & Anor SC 13/06 at page 5, the court outlined relevant considerations in an application of this nature. It highlighted that;

‘The factors to be considered in an application of this nature are inter alia, the degree of non- compliance (or the extent of the delay), the explanation for it, the prospects of success, the respondent’s interest in the finality of his judgement and the avoidance of unnecessary delay in the administration of justice.’

The application was filed after 14 months. This length of delay is inordinate in view of the fact that the appeal should have been filed within 21 days after proceedings terminated. See Rule 19(1) of the Labour Court Rules. The explanation given for the delay is unreasonable. The lawyers

were operating from a misunderstanding of the law when they agreed that a wrong forum had been approached. The cases that applicant relied on in establishing the view that labour officers have no appellate jurisdiction over disciplinary proceedings arising from Codes of conduct are all pre 2023 cases. After the 2023 amendment to the Labour Act, the labour officer was given powers to hear appeals arising from disciplinary proceedings. This power is only exercisable after the proceedings are completed. Applicant had approached the labour officer after the disciplinary proceedings had been completed. He was operating within the confines of what is permissible at law. What makes applicant’s new advice unreasonable is the fact that he abandoned lawful proceedings before the labour officer and to rushed to this court. This court cannot condone the conduct of the applicant who abandoned lawful proceedings in one forum and rushed to make a similar application in another forum. The remedies likely to be obtained from the two forums are the same.

The court finds that the length of delay is inordinate in the circumstances of the case.

EFFECT OF RECEIVING WRONG ADVICE FROM LAWYERS

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) 2 317 E, the court stated the following in relation to the attitude of courts when wrong advise is obtained from a lawyer;

‘There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon observance of rules of the court. Considerations ad misericodiam should not be allowed to become an invitation to laxity. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation for failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship.’

In casu, the applicant chose a lawyer and obtained wrong advise. There is no reason which has been given to this court as to why the applicant should not escape the consequences flowing from his choice of a lawyer. This arises from the fact that even in court, after having the benefit of having section 101 (5) read, applicant’s counsel remained adamant that a labour officer has no jurisdiction to entertain appeals from disciplinary proceedings when it was clear that the law has given them power to hear appeals in completed proceedings. The proviso to section 101 (5) is clear that labour officers now enjoy appellate powers over completed disciplinary proceedings arising from Codes of conduct.

In casu, the court finds that consideration ad misericodiam should not be allowed to be over emphasized, in the face of the fact that the lawyers demonstrated lack of diligence. In any event, the applicant still has a remedy in that he can revive the abandoned proceedings before the labour officer and get the same remedy from that forum. His right to the protection of the law have not been taken away in the circumstances of the case.

WHETHER OR NOT THERE ARE PROSPECTS OF SUCCESS

The applicant attacked the decision of the Appeals Committee on the basis that the employer failed to identify a condition of the contract which was violated. He also attacks the charge sheet for lacking specificity in that it did not specify whether the appellant was incompetent or inefficient. In motivating this point, he relied on Muyaka v Bathly Logostics SC 39/17 for the point that the charge ought to have been specific on whether the charge was that the appellant was inefficient or incompetent.

Suffice to point out is the fact that the appellant does not argue that he is innocent of the charges levelled against him. He does not address the merits of the case to say I am not guilty because I led this particular evidence tending to show that I am innocent. Attacking the charge sheet does not exonerate applicant from liability for the wrong he is alleged to have done. Labour matters are not supposed to be settled on technicalities. One should escape liability because they are innocent. See AIR ZIMBABWE (PRIVATE) LIMITED v CHIKU MENSA and MAVIS MWARWEYE SC 89/04 case.

Applicant was also found guilty of accepting used vehicles when the employer had bought new vehicles. To demonstrate that applicant has prospects of success, he ought to have indicated where in the record of proceedings a quo did, he challenge the evidence relied upon by the disciplinary committee in finding him guilty. He ought to have demonstrated in what respects the decision of the Appeals court was wrong to warrant interference on appeal by this court. This has not been demonstrated in the notice of appeal.

On merit he also attacks the dismissal penalty meted out to him. However, if the employer has taken a serious view of an infraction, superior courts rarely interfere with such an exercise of discretion. In any event, penalty is the discretion of the employer. See Malimanjani v CABS 2007

(2) ZLR 77 (S). The employer’s sentencing discretion is normally interfered with where he acted unreasonably or capriciously or with mala fides. See ZFC v Geza 1998 (1) ZLR 137 (S).

Appellant does not demonstrate how the exercise of the sentencing discretion was exercised capriciously or with mala fides. In the result, there are no reasonable prospects of success in the appeal warranting the granting of the indulgence sought.

FINALITY TO LITIGATION

Applicant avers that the need to ensure finality to litigation is paramount. He asserts that he will suffer prejudice if the court is to dismiss the application. It is however important to highlight that applicant finds himself in this position largely because he had received and accepted wrong advice. He was in the correct forum before the labour officer. Midway through the proceedings, and acting on wrong advise, he approached this court. This is akin to forum shopping. The need to finality to litigation requires that such conduct by litigants be frowned upon.

DISPOSITION

The application by the appellant is without merit and cannot succeed. In the result, it is ordered as follows:

That the application for condonation for late filing of an appeal and extension of time within which to file an appeal be and is hereby dismissed.

Costs to follow the cause on an ordinary scale.

MOYO AND JERA LEGAL PRACTITIONERS