Lloyd Masunda v Swedish Co-operative Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/109/14
HELD AT HARARE 6th MAY, 2013
CASE NO LC/H/403/07
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IN THE LABOUR COURT OF ZIMBABWE	    	JUDGEMENT NO LC/H/109/14

HELD AT HARARE 6th MAY, 2013			CASE NO LC/H/403/07

AND 2ND OCTOBER, 2013

AND 28TH FEBRUARY, 2014

In the matter between:-

LLOYD MASUNDA								Appellant

And

SWEDISH CO-OPERATIVE CENTRE					Respondent

Before The Honourable Justice B.T. Chivizhe,

For Appellant:	Mr. L. Masunda in person

For Respondent:	Mr. D. Chinawa (Legal Practitioner)

CHIVIZHE, J.

The matter was heard before myself on the 6th of May, 2013.  The court after an attempted mediation directed the parties to, if possible, settle the matter out of court.  In the event that settlement failed the parties were to approach the Registrar for the court to hand down judgment.  Both parties through communication to the Court (the Appellant through a letter dated 18th June, 2013 and the Respondent through a letter dated 2 October, 2013) advised of their failure to settle.  The parties having failed to settle the matter amicably I now address the merits of the appeal placed before me.

The appeal was noted against the decision of the Disciplinary Authority handed down on the 12th of October, 2007 which decision found the Appellant guilty of the misconduct charges levelled.  A penalty of dismissal with immediate effect had consequently been imposed.

At the hearing of the appeal the Respondent took a point in limine that the appeal was not properly before the Labour Court.  It was submitted that under the provisions of the relevant Code i.e. (National Employment Code of Conduct) Statutory Instrument 15 of 2006 Regulations as amended by the Labour (National Employment Code of Conduct (Amended) Regulations, Statutory Instrument 232 of 2006 this appeal ought to have been made to an Appeals authority.  In the event that Appellant was still dissatisfied with the decision of the Appeals authority he would have referred his matter to a Labour Officer for disposition of the matter in terms of Section 93 of the Labour Act [Chapter 28:01].  Thereafter upon failure to conciliate the matter would be referred to compulsory arbitration and finally to the Labour Court.  It was Respondent counsel’s submission that the Appellant having failed to appeal internally to an Appeals Authority the appeal was consequently improperly before the Labour Court.  The appeal ought therefore to be struck off with costs.

The Appellant clearly has chosen to adopt the wrong procedure.  It is clear after receiving the determination by the Disciplinary Authority his appeal lay with the Appeals Authority.  The Appellant has in his oral and written submissions conceded that the matter is improperly before the Labour Court.  In his last communication dated 19th of June, 2013 he writes

“I now kindly ask your office to issue an order to allow this matter to be referred to the right channels, which I had already pursued before as it was wholly wrongly filed before the Labour Court.  The matter is still pending before the Arbitrator, Honourable P. Mutsinze.”

The appeal clearly stands to be dismissed as being improperly before the Labour Court.

In the circumstances the court grants an order in the following terms;

The appeal be and is hereby dismissed as being improperly before the Labour Court.

There is no order as to costs.

Chinawa Law Chambers – Appellant’s Legal Practitioners