Jealous Marango v Banc ABC

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/465/2013
HELD AT HARARE 18 & 27 SEPTEMBER 2013
CASE NO.
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IN THE LABOUR COURT 			              JUDGMENT NO. LC/H/465/2013

HELD AT HARARE 18 & 27 SEPTEMBER 2013		  CASE NO. LC/H/166/2013

In the matter between

JEALOUS MARANGO					Appellant

And

BANC ABC 				                            Respondent

Before The Honourable P. Muzofa; Judge

For Appellant 	-	Mr Bakasa (Legal Practitioner)

For Respondent	-	Mr Bhebhe (Legal Practitioner)

MUZOFA P.;

After hearing both counsel and having read the documents filed of record the court dismissed the appeal on the basis of a point in limine that was raised.  The reasons were read in court and these are the written reasons for the dismissal of the appeal.

The appellant was employed by the respondent as a central cash Depot Supervisor in the respondent’s retail operations department.  He was charged in terms of the respondent’s code of conduct Section 19(1) Category ‘D’ thereof which states

“any serious act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of the contract” and also theft.

The disciplinary committee heard the matter in the absence of the appellant, evidence was led and found the appellant guilty and dismissed him from respondent’s employ.  Appellant appealed to the Appeals Committee.  Appellant’s first ground of appeal before the appeals committee was to the effect that he was denied his right to be heard since he was not notified of the date of hearing.  In addition there were other grounds of appeal that I will not include as they are not part of the basis of the decision the court made.  The appeals committee considered the grounds of appeal and made a decision that appellant had waived his right to be heard and confirmed his dismissal.  Appellant then approached this court on appeal.

The appellant’s documents filed of record were filed by a representative from ZIBAWU one Mr Marimo.  Before this matter proceeded on merits it was raised by counsel for the respondent that Mr Marimo was not supposed to represent the appellant since he was a managerial employee.  There was no dispute that appellant was a managerial employee.  There was also no dispute that ZIBAWU is a trade union for non managerial employees.  Mr Marimo argued that appellant had a right to choose which trade union to affiliate to.  The court granted the respondent’s application and Mr Marimo was excused from the hearing.  The reasons were given to parties.  Thereafter appellant instructed a legal practitioner who did not file additional documents.

Before this court it was raised by counsel for the appellant that the appellant’s default before the disciplinary committee was not willful he was misled.  This issue was raised as a point in limine before delving into the merits of the case.  The appellant was led to adduce evidence to show that he indeed was not in willful default.  The court is empowered to hear evidence in terms of Section 90A (2) of the Labour Act Chapter 28:01  Under cross examination appellant indicated that the disciplinary committee’s record of proceedings was inaccurate.  He alleged that the postponement to the 9th of January 2013 was subject to confirmation.  He had spoken to someone after the hearing of the 8th of January 2013 who had said he will contact him.  To this extent that is why he did not attend the said hearing he was misled.  It was pointed out by counsel for the respondent that there was an audio recording of the proceedings of the disciplinary committee for the 8th of January 2013.  In that regard an application was made and granted for parties to listen to the audio recording and file a statement of agreed facts of what transpired on the 8th of January 2013.

After both counsel filed their submissions it emerged there was no agreement of what transpired.  Counsel however also filed the transcribed record of the audio recording.  The court is grateful to both counsel’s efforts.  A perusal of the audio transcript show the following, that appellant was present, that his representative was delayed and joined the proceedings shortly after the hearing started and that the issue of postponement was deliberated in his presence.  The chairman of the disciplinary committee advised parties that the matter be postponed to the 9th of January at 0900 hours, appellant responded,

“whatever you are saying, we will not object it is your decision to ………”

The appellant’s representative one Stewart Chitembwe also confirmed and said

“………… tomorrow is Tuesday …… oh its Wednesday okay at 9. o’clock ……… on my diary I think I am okay”.

The chairman then made a tentative pronouncement that “tomorrow the 9th at 9.00”.

The appellant, I must say is not being truthful to this court.  Its crystal clear that when all the parties left the hearing on the 8th of January 2013, the matter was to be heard the following day the 9th of January 2013 at 0900 hours.  There was no communication that it was subject to confirmation, parties agreed to appear.  On the 9th of January 2013 appellant and his representative did not appear.  Surely they chose to waive their right to be heard, appellant was aware of the hearing date.  He chose not to appear.  The disciplinary committee cannot be faulted for proceeding in his absence.  The appellant cannot seek to be protected under the audi alterem partem rule yet he was sluggish in dealing with his case.  Certainly it has always been said the law will assist the diligent and not the sluggard.  He was the author of his own peril in this case.  The appellant chose not to be heard and therefore cannot complain see The Foschini Group v Maidi Mabe & others 2008 SCA12, Munyuki v City of Gweru 1998 (1) ZLR 182 and Peter Lovemore Chiyangwa v Zellco Cellular Pvt Ltd LC/H/327/10.

On that basis alone the appeal must fail.  The appellant was in willful default.  He cannot be heard to complain against the decision of the disciplinary committee he chose not to attend.  Accordingly it is ordered that:

The appeal be and is hereby dismissed.

There shall be no order as to costs.

Nyamayaro Makanza & Bakasa - Appellants Legal Practitioners

Kantor & Immerman - Respondent’s Legal Practitioner s