James Maluso & Another v Delta Beverages Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/414/16
HELD AT HARARE 17 MAY 2016
CASE NO
JUDGMENT NO LC/H/414/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/414/16

HELD AT HARARE 17 MAY 2016				CASE NO LC/H/APP/79/16

& 8 JULY 2016

In the matter between:

JAMES MALUSO & ANOTHER					Applicants

And

DELTA BEVERAGES LTD					Respondent

Before The Honourable L Kudya, Judge

(IN CHAMBERS)

This is an application for consolidation of LC/H/923/15 and LC/H/875/14 the 2 being appeals made against the respondent employer where in one case the employee was dismissed from work and the other was given a final warning following allegations of breaching the employment Code of Conduct.

The argument advanced for consolidation is that the witnesses who were used on the matters were the same and that the same set of facts is what birthed the allegation faced by the employees.

Consolidation is opposed on the basis that it serves no meaningful purpose since at the shop floor level the matters were dealt with separately.  It is also argued that the 2 employees were employed in different capacities hence making their job descriptions different consequently when same was to be viewed against the infraction different results would be birthed as demonstrated by the different penalties meted out in the 2 cases. Further to that it is argued that the employees did not face the same charges hence there was no basis to consolidate the same.

The  law is settled that consolidation can be granted where the justice of the case is achieved by such as opposed to a piecemeal approach where the matters are treated individually.  See Nyamadzawo v Gweru Magistrates Court HC-B-7-11.  It is also settled that such an exercise is not done for the mere sake of it.

A reading of the record at stake and the records sought to be consolidated shows from the documents singling out the outcomes of the disciplinary hearings that the 2 employees faced different charges and were dealt with differently.  Besides, the appeals at this court are further testimony that there was no intention to have the 2 cases joined.  Such an intention cannot assist or add anything to either appeal save to probably cut costs to be incurred by dealing with separate pleadings.  The court is persuaded by the employer’s argument that even on the face of it these were 2 different employees with distinct job descriptions.

To that extent even when the infractions had to be explained by the witnesses they would have to be in sync with each other’s portfolio.  Besides, even the penalty of the event of a conviction would also need to be in line with the employees circumstances including the level of trust etc.  The court is persuaded that this is not a good case for consolidation and the application for such should fail.

IT IS ORDERED THAT

The application for consolidation being without merit it be and is hereby dismissed.

Each party to bear own costs.