Mary Sekai Tande v Eaglesvale Junior School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/75/2023
HARARE 23 FEBRUARY 2023
CASE NO LC/H/984/22
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/75/2023

HARARE 23 FEBRUARY  2023                              	CASE NO LC/H/984/22

9 MARCH  2023

MARY SEKAI TANDE					APPLICANT

EAGLESVALE JUNIOR SCHOOL			RESPONDENT

Before the Honourable G. Musariri  Judge:

For Applicant			Mr B. Mudiwa Attorney

For Respondent		Ms H. Ndudzo, Attorney

MUSARIRI, J:

Applicant applied to this Court for the condonation of a belated appeal in terms of Rule 22 of the Labour Court Rules S.I.  150/17.  Respondent opposed the application.  I shall deal with the application under 2 subtitles.

Delay

Applicant worked for Respondent as a teacher in Harare.  She was dismissed from employment for misconduct. She appealed to respondent’s Appeals Officer who dismissed the appeal on the 16th June 2022.  On the 8th July 2022 she appealed to this Court. The matter proceeded under reference LC/H/595/22 until applicant withdrew the appeal on the 17th October 2022.  The present application was then filed on the 24th October 2022.  Rule 19(1) of the Court’s Rules requires that an appeal should be filed within 21 (twenty-one) days of the impugned order. Therefore, the intended appeal in case is 3 months out of time.

The explanation for the delay is set out in the founding affidavit as follows;

“3.5 When I received the notice of opposition I sought professional legal assistance from my legal practitioner to which I was advised that my appeal was incurably defective because it did not comply with a lot of the provisions of this Honourable Court.

3.6 I was initially of the view that the court may be lenient to me as I was a self-actor and I had written the inscription LC 4 on my appeal.

3.7 I however later realised that there was need for me to ensure that I comply with the rules of the court and ensure that a proper appeal if (sic) filed so that justice of the matter is attained.

3.8 I then accepted the advice from my legal practitioners and gave instructions to withdraw the defective appeal and properly refile the appeal.”

Applicant did a good thing by seeking assistance of an attorney. However, she did bad by spurning the advice of the attorney.  The delays in the matter would have been mitigated by a prompt withdrawal of the defective appeal.  I consider her explanation for delay as hovering close to unreasonableness.

Prospects of success:

The material facts of this matter are common cause.  Applicant admitted that she slapped two school children in the course of her duties.  She filed a draft notice of appeal which raises 2 (two) issues.

Whether the respondent followed the correct employment code in dismissing her:

Applicant argued that the respondent falls under the NEC for the Welfare & Educational Institutions.   Accordingly, she should have been disciplined in terms of the NEC’s Code.  However, the employer wrongly used the Labour (National Employment Code of Conduct) Regulations S.I   15/06 commonly called the National Code, so the argument went.

On the other hand, respondent stated that they are a member of the Association of Trust School (ATS).  ATS teachers were excluded from graded staff covered by the NEC code.  That is apparent from the definition of “teacher:” in   S.I.  267/20 which specifically excludes ATS teachers.  Respondent further relied on the employment contract which references the National code in its Clause 3.3 thus

“The Employee shall at all time abide by the School’s Code of Conduct under S.I 15 of 2006 and….”

It is clear that applicant’s argument is untenable in light of the contents of her employment contract and the relevant statutory instruments.

Whether the penalty of dismissal was a ‘grossly unreasonable and irrational sentence.”

Applicant’s founding affidavit deals with this point tersely.

“6 (c) The decision to pass a dismissal sentence was too harsh given the obtaining circumstances of the matter.”

The circumstances are not clarified.  The draft grounds shed some light thus

“5 The Appeals Officer erred in failing to note that the disciplinary authority had not properly paid a cursory glance to mitigatory factors which were apparent from Appellant’s circumstances and her overall intention on exercising her loco parentis role to two pupils who were continually misbehaving in class disrupting a smooth learning environment.”

In other words, applicant claims that her conduct was mitigated by the fact that she was disciplining the children.  Discipline by way of beating school children is directly prohibited by section 68A of the Education Amendment Act   No 15/20 which provides that

“(5) Under no circumstances is a teacher allowed to beat a child.”

Applicant did exactly what she was prohibited by statute from doing. The statutory prohibition underscores the gravity of the misconduct.  Nothing else pleaded or proved mitigates applicant’s conduct.  Therefore, the employer, in the exercise of its discretion on penalty, was entitled to impose the ultimate penalty in the circumstances.

See Celsys v Ndeleziwa 2015(2) ZLR 62 where Gwaunza JA stated at 65F.

“The law is settled that in circumstances where an employer takes a serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding the employee guilty of the misconduct in question.”

CONCLUSION

Applicant’s case on delay is just so-so. However, it is clear that she does not have reasonable prospects of success on the merits.  On that account the grant of condonation of a belated appeal serves no useful purpose.

WHEREFORE IT IS ORDERED THAT,

The application for condonation be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E