Ms Ester Gambakwe v Gain Cash and Carry (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/302/25
HARARE, 26 JUNE, 2025
CASE NO. LC/H/304/25
MS ESTER GAMBAKWE
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/302/25 HARARE, 26 JUNE, 2025		CASE NO. LC/H/304/25

MS ESTER GAMBAKWE	APPELLANT

GAIN CASH AND CARRY (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant For Respondent

MUSARIRI, J:

A. Tambanewenyu, Attorney

N. Mangoi, Attorney

At the onset of oral argument in this Court the both parties raised points in limine

which will be dealt with in turn,

Appellant

Appellant objected to the production of documents attached to the Notice of Response on the basis that the documents were not produced during proceedings in the lower fora. However during oral argument appellant dropped the objection.

Respondent

That the prayer to the appeal is fatally defective:

The prayer is rather poorly drafted. It does not pray for the success of the appeal. Further it does not couple the prayer for reinstatement with the alternative of damages in lieu of reinstatement. However the prayer for reinstatement cannot be granted without the appeal being allowed. As such the prayer implicitly prays for the appeal to be allowed. As regards the omission of damages, it is the Court which is obliged to couple its order of reinstatement with the alternative. A party can pray for reinstatement as that is the primary remedy for unlawful or unfair dismissal from employment. On that basis the Court finds the prayer in casu to be substantially compliant with its requirements.

That the grounds of appeal are generalised and do not raise points of law:

In the course of oral argument, appellant abandoned the first 2 grounds of appeal. The court has gone through the remaining 5 grounds and is satisfied that they are sufficiently specific. One can get the substance of what each of them says. As regards points of law, the appellant is not restricted to raising points of law in appealing against decisions from the workplace. Section 92D of the Labour Act Chapter 28:01 hereafter called the Act provides that,

“A person who is aggrieved by a determination made under an employemtn code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

The provision does not restrict the rounds of appeal to points of law. It is unlike Section 98

(10) which restricts appeals against arbitral awards to points or questions of law. Therefore this point in limine lacks merit.

That the appeal is improperly before the Labour court for failure to first appeal to a Labour Officer;

The point is based on Section 101 of the Act (as amended in 2023) which provides,

“(5). Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion

of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of Section 93 or exercise any other power provided for in that section.”

This court has already ruled in other cases that the amendment by the Labour Amendment Act, 2023 did not repeal Section 92D of the Act which allows appeals to the Labour Court. The effect of the amendment is to give an aggrieved party the option to either appeal to the Labour Court or refer his grievances to a Labour Officer. See for example Mukorera v Sanyati LC/H/157/25.

Conclusion

Appellant withdrew her point in limine. Respondent’s points in limine lack merit as the foregoing analysis shows.

Wherefore it is ordered that;

Respondent’s points in limine be and are hereby dismissed; and

Costs shall be costs in the cause.

G. MUSARIRI J-U-D-G-E