Michael Dabulamanzi V Bindura Nickel Corporation LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/242/2014
HARARE, 2 APRIL 2014
CASE NO. LC/H/242/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/242/2014

HARARE, 2 APRIL 2014	    		             	     CASE NO. LC/H/126/13

& 9th MAY, 2014

In the matter between:-

MICHAEL DABULAMANZI				Applicant

And

BINDURA NICKEL CORPORATION LTD		Respondent

Before Honourable L.M. Murasi, Judge

For Applicant		-	Ms E. Makaka (Legal Practitioner)

For Respondent		-	Mr R.J. Gumbo (Legal Practitioner)

MURASI J:

At the close of submissions I dismissed the application stating that the reasons would follow.  The following are the reasons.

Applicant was employed by Respondent and was charged with contravening section 3.2.4 (c) of Respondent’s Group Employment Code of Conduct.  Applicant is alleged to have grossly failed to manage the stocks of explosives in terms of the safety procedures.  The Hearing Committee recommended his dismissal.  Applicant appealed to the Disciplinary and Grievance Committee which upheld the dismissal.  Applicant’s Counsel thereafter appealed to the National Employment Council (NEC) which was in fact the wrong forum.  The Applicant has finally approached this Court with an application for condonation for late noting of the appeal.

Applicant submits that his explanation for the delay is that it was a mistake to approach the NEC but it was reasonable in that Designated Agents also deal with labour appeals.  Applicant further submits that it has always been his intention to contest the decision of the employer to dismiss him.  Applicant further states that he has prospects of success on appeal because the decision to hold him accountable for the shortfall was wrong as this was a systemic error.  Applicant states that Respondent erred in dismissing him as the Code of Conduct does not warrant summary dismissals.

Respondent on the other hand, argues that Rule 15 (1) of the Labour Court Rules require an appeal to be made within twenty-one (21) days of receipt of the decision or judgment.  Respondent submits that Applicant has not complied with the Rules.  Respondent submitted that applicant was advised at the conclusion of the hearing that if he needed to appeal, he was to approach the Human Resources Department for assistance.  This the Applicant did not do and proceeded to file the appeal in the wrong forum.  Respondent further submitted that Applicant had no prospects of success on appeal as the decision by the Hearing Committee was a proper one.

The principles regarding condonation are aptly captured in HEBSTEIN AND VAN WINSEN’S.  The Civil Practice of the Supreme Court in South Africa 4 edition at page 897 to 898 where it is stated:

“Condonation of the non-observance of the rules is by no means a mere formality.  It is for the Applicant to satisfy the Court that there is sufficient cause to excuse him from compliance.  These factors usually weighted by the Court in considering an application for condonation … include the degree of non-compliance, no explanation for it, the importance of the case, the prospects of success, the Respondent’s interest in the finality of the judgment, the convenience of the Court and the, unnecessary delay in the administration of justice.”

Applicant’s explanation for the delay is that he went to the wrong forum.  As stated by Respondent, Applicant “single-handedly” brought the prejudice upon himself.  In fact, the record shows that it was Applicant’s legal practitioners who made the appeal to the NEC.  Applicant’s Counsel sought to state that the other cause of the delay was Applicant’s inability to obtain the record of proceedings from Respondent.  The Court reminded Applicant’s Counsel that this was not contained in Applicant’s Founding Affidavit and amounted to submissions from the bar and therefore would not be taken as evidence.  It is trite that the explanation for the delay must be reasonable and reasonableness can only be ascertained from the circumstances of the case.  The record shows that Applicant was advised to approach the Human Resources Department if he wanted to appeal.  He did not do as recommended but proceeded to the wrong forum.  Applicant’s Counsel only “woke up” when the NEC wrote back advising them that they were in the wrong forum.  Despite this, the period between 10 September 2013 and 9 October 2013 remains unexplained by the Applicant.

In KM AUCTIONS (PVT) LTD vs SAMUEL AND OTHERS S 15/12 GOWORA AJA (as she then was) held that negligence or a lack of attention to detail on the part of a legal practitioner would not be an explanation that the Court should find satisfactory.  The Learned Judge further held that there is a limit beyond which a litigant cannot escape the results of his lawyer’s lack of diligence or the insufficiency of the explanation tendered as to hold otherwise might have a disastrous effect upon the observance of the Rules of the Court.  The legal practitioner is the representative which the litigant has chosen himself.  The Court in this instance finds the explanation tendered, to be unsatisfactory and insufficient.

The Court will now turn to the prospect of success on appeal.  The Applicant was charged with a failure to manage stocks of explosives.  Respondent discovered a shortfall in the explosives that were supposed to be under the care and management of the Applicant.  Applicant’s explanation for the shortfall was that he did have sufficient manpower to do this.  Applicant was supposed to keep accurate records which he failed to do as required by the company regulations and the law.  Such failure is apparent.  Respondent took a serious view of such failure at the consequences of the loss of explosives were dire.  Applicant raises another issue.  He alleges that the section under which he was charged did not sanction a dismissal.  Applicant was charged under section 3.2.4. (c) for “Insufficiency: failure to carry out work to the required standard”.  The Code provides for summary dismissal in certain circumstances including in (X) “For gross incompetence or inefficiency in the performance of duty.”  Applicant’s submissions on this point are therefore incorrect.

Can it be said that Respondent erred in dismissing the Applicant in the circumstances or to put it differently, was the penalty of dismissal too harsh in the circumstances?  The following dicta in NAMPAK CORRUGATED WAPEVILLE vs KHOZA [1999] 2 BCLR 107 (LAC) at 113 F-I is apposite:

“.. the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  A Court should therefore not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction.  The question is not whether the court would have imposed the sanction imposed by the employer but whether in the circumstances of the case the sanction was reasonable.  It seems to me that the correct test to apply in determining whether a dismissal was fair, is that enunciated by Lord Denning MR in BRITISH LEYLAND UK LIMITED vs SWIFT [1981] IRLR 91 at 93 which is –

“was  it reasonable for the employer to dismiss him?  If no reasonable employer would have dismissed him then the dismissal was unfair.  But, if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

A reasonable employer would have dismissed applicant for the

mismanagement of the explosives stocks as exhibited by applicant.

The Court is of the considered view that for the above-stated reasons, there are no prospects of success on appeal.

In the result, the Court finds that the application for condonation for late noting of appeal is devoid of merit and is accordingly dismissed.  There is no order as to costs.

MUSUNGA & ASSOCIATES, Applicant’s legal practitioners

GUMBO & ASSOCIATES, Respondent’s legal practitioners