Lawson Chifamba v Grain Marketing Board

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/617/2014
HARARE, 08 AND 26 SEPTEMBER 2014
CASE NO. LC/H/617/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/617/2014

HARARE, 08 AND 26 SEPTEMBER 2014		     CASE NO. LC/H/823/12

In the matter between:-

LAWSON CHIFAMBA						Appellant

And

GRAIN MARKETING BOARD					Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. V. Chivhiya (Legal Practitioner)

For Respondent		Mr. P. Makuwaza (Legal Practitioner)

CHIDZIVA, J:

The Appellant is appealing against the decision of Respondent to dismiss him from employment.  The grounds of appeal are that;

Appellant was on acknowledged indefinite sick leave from 29 September 2008.

The disciplinary hearing was conducted on the 12th of December 2008 in his absence.

Appellant was never notified of the charges or hearing.

The dispute was a result and continuation of the unfair labour practices perpetrated against Appellant by Respondent since 2006.

Appellant wishes to have his case LC/H/823/12 and LC/REV/59A/11 consolidated.

On these case grounds Appellant prayed for;

Reinstatement without loss of salary or benefits.

Payment of interest and ruling bank lending rates and;

Payment of legal fees.

The Respondent has however raised points in limine by stating that;

The appeal filed of record on the 11 December 2012 is not properly before this court as it violates section 15 of the Rules of this court.

The appeal is based on procedural issues and not merits of the case.

Section 15 1(a) of the Labour Court rules states that;

“A person wishing to appeal against any decision, determination, that direction referred to in Section 97 (1) (a) and (b) of the Act on a question of law in connection with any arbitral award in terms of Section 98 (10) of the Act shall, within twenty-one days from the date when the appellant receives the decision, determination direction or award to the following;

Complete in three copies a notice of appeal in Form LC3 ---“

The Appellant has not filed that form in this Court.  According to the rule stated above it is peremptory that Appellant files that notice of appeal in Form LC3.

The Appellant in his grounds of appeal raised procedural issues which can only be raised on review.  Section 92E (1) of the Labour Act states that;

“An appeal in terms of this Act may address the merits of the determination or decision appealed against.”

Thus therefore means that the grounds of appeal cannot stand as they are not dealing with the merits of the case.

In the case of Enock Mukushwa v Health Services Board LC/H/766/12 the Labour Court also stated that;

“The other complaint raised by Appellant related to matters of procedure.  These can only be raised in a review not in an Appeal---“

The Appellant has also raised another ground of appeal and stated that;

“The above dispute is a result and continuation of the unfair Labour practices perpetrated against Appellant by Respondent since 2006.”

However Section 93 of the Labour Act states that;

“(1) A Labour Officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, it agreed by parties by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing ----“

This section clearly shows that any complaint of unfair Labour practice should have been taken up to the Labour officer from conciliation and not appeal.

The Appellant as one of the grounds of appeal stated that;

“Appellant wishes to have this case LC/H/823/12 and LC/REV/59A/11 consolidated.”

Although the Appellant during the course of the hearing indicated that he was abandoning this ground this court would like to point out that this issue could only have been resolved by applying for the consolidation.  Rule 27 of the Labour Court Rules 2006 i.e. S.I. 59/06 states that;

“A President, prior to a hearing and in the course of a hearing may at his own instance or upon application by a party order that two or more applications, appeals or reviews be consolidated or heard together ---“

In view of the foregoing therefore this court finds that this matter is not properly before this court.  The irregularities make the Appeal null and void.

Accordingly it is hereby ordered that

The appeal be and is hereby struck off the roll.

NYAWO RUZIVE LEGAL PRACTICE, Appellant’s legal practitioners

MAKUWAZA & ASSOCIATES, Respondent’s legal practitioners