National Bakeries v Boniface Madzvatsu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/05/2014
HARARE, 9 SEPTEMBER 2013 & 28 FEBRUARY 2014
CASE NO LC/H/989/2012
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/05/2014

HARARE, 9 SEPTEMBER 2013 &		   CASE NO LC/H/989/2012

28 FEBRUARY 2014

In the matter between:-

NATIONAL BAKERIES							APPELLANT

Versus

BONIFACE MADZVATSU							RESPONDENT

Before the Honourable B S Chidziva : Judge

For the Appellant		E R Samukange (Legal Practitioner)

For the Respondent		V Mazhetese (Legal Practitioner)

CHIDZIVA J:

The brief facts of this matter are that:

The respondent was employed by the appellant as a bakery checker

On 11 July 2011 he was suspended from employment without pay and benefits.

On 15 July 2011 the respondent was phoned by a workmate to report at work on that day. He appeared for a hearing that day and he was dismissed from work.

On the 29 of July 2011 the respondent received a formal notification of the hearing. He was being charged for gross incompetence in performance of duties and habitual substantial neglect of duty.

The respondent took up the matter for redress. The honourable arbitrator G Fereshi on 11 July 2011 issued an award in the respondent’s favour. The award was couched as follows:

”Mr Madzvatsu is to be re-instated to his original position with full pay and benefits with effect from date of dismissal. If re-instatement is no longer possible the respondent is hereby ordered to pay complainant damages for loss of employment, the quantum of which is to be agreed between the parties failure to which either party is to approach the arbitrator for quantification of damages. The respondent has the right to institute fresh proceedings against complacent. All payment is to be done by 15 December 2012.

I so award.”

The appellant has thus noted an appeal against this award. The grounds of appeal are as follows:

“1 The arbitrator erred in holding that the respondent was un-procedurally dismissed. The respondent was given the notice of hearing on 9 July 2011 and the hearing was conducted on 15 July 2012. All rules of procedure as required by law were observed.

2.	The arbitrator erred and misdirected herself in proceeding to determine the labour dispute before her on technicalities. Overwhelming evidence was given and led to the effect that the respondent had defraundedthe appellant.

3.	The arbitrator found that the respondent should benefit from his over misconduct and this is erroneous at law.

4.	The arbitrator erred and misdirected herself in proceeding to hold that the respondent be re-instated with full pay and benefits from the 11th of July 2011 when the respondent was dismissed on the 19th of July 2011. The alleged date of dismissal by the learned arbitrator is erroneous.

5.	The learned arbitrator also erred at law in not finding from the appellant in circumstances where it was clear that dismissal was the appropriate remedy available as far as the respondent’s conduct was concerned.”

The appellant thus prayed that the arbitral award be set aside and be substituted with the following:

“… that the respondent, Boniface Madzvatsu’s dismissal from employment on the 19th of July 2011 be and hereby upheld.”

The respondent in response told the court that:

The grounds of appeal are frivolous and vexatious.

The arbitrator correctly noted that the procedural irregularities were so gross to be condoned.

An appeal to the Labour Court lies on a point of law. The grounds of appeal do not raise any point of law.

The respondent therefore prayed that appeal be dismissed with costs.

When the parties appeared before this court on 10 September 2013, Mr Samukange who was appearing for the respondent then applied that the matter be postponed sine die. He told the court that there was another matter preceding in the High Court relating to the arbitral award. He submitted that the results that would come out of the High Court had a direct bearing on this appeal.

Mr Mazhetese opposed the application and told the court that the High Court and Labour Court enjoy different jurisdiction. It was further submitted that it is not known when the High Court will finalise the matter.

The appellant has not told the court what this matter at the High Court is all about. The appellant should have applied for stay of execution of the award as provided for in terms of s 92 E (3)of the Labour Act [Cap 28:01].

The other option is that the appellant should have just withdrawn the appeal if he had chosen to deal with the High Court.

In view of this the court finds that the application for postponement sine die is without merit.

It is therefore ordered that:

The application for postponement be and is hereby dismissed with costs.

The Registrar is directed to set down the appeal for hearing.

Venturas&Samukange, appellant’s legal practitioners

J Mambara& Partners, respondent’s legal practitioners