Nickson Mashiri v Cresta Poultry Group t/a Agrifoods and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/281/14
HELD AT HARARE ON 13th MAY, 2014
CASE NO. LC/ORD/H/15/14
AND 23RD MAY, 2014
JUDGMENT NO. LC/H/281/14
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO.LC/H/281/14

HELD AT HARARE ON 13th MAY, 2014   CASE NO. LC/ORD/H/15/14 AND 23RD MAY, 2014

In the matter between:-

NICKSON MASHIRI	 					Applicant

And

CRESTA POULTRY GROUP t/a AGRIFOODS		1st Respondent

And

K. SUTTON							2nd Respondent

And

E. RUBENI							3rd Respondent

Before the Honourable G. Mhuri, Judge

For Applicant	: Mr. T. Madondo (Legal Practitioner)

For Respondent: Mr. S. Rutsito (Legal Practitioner)

MHURI J.:

This is an application for the nullification of the disciplinary proceedings held by Respondent on the 26th February, 2014.

In summary the undisputed background of this matter is that, on the 20th February, 2014 Applicant duly represented by his Legal Practitioner, attended a disciplinary hearing where he was being charged for an act of misconduct.

The hearing was postponed to the 26th February, 2014 for continuation.  On the 26th Applicant’s legal practitioner could not attend the hearing.  He wrote a letter addressed to the Respondent seeking a postponement of the hearing to the 28th of February or 3rd March, 2014 as he was seized with another matter at the Labour Court.  He had received the Labour Court notice of hearing on the 25th February, 2014.

The application for a postponement did not find favour with Respondent and the hearing proceeded as scheduled.  Applicant was found guilty and dismissed from Respondent’s employ.

Aggrieved by the manner Respondent proceeded with the hearing in the absence of his legal practitioner, Applicant filed this application seeking that the proceedings be nullified as his constitutional right to be represented by a legal practitioner was flouted.  As a result, he suffered gross prejudice as he was convicted and dismissed.

The Labour Court is a creature of Statute.  Its jurisdiction is derived from the four corners of the Labour Act [chapter 28:01] (The Act).  It has powers to deal with appeals, reviews and applications specifically provided in the Act.

Section 89 of the Act provides for the functions powers and jurisdiction of the Labour Court.

“(1)	The Labour Court shall exercise the following functions –

Hearing and determining applications and appeals in terms of this Act or any other enactment and

…

…

…

(d1)exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

See also the case of :-

NATIONAL RAILWAYS OF ZIMBABWE

VS

ZIMBABWE RAILWAY ARTISANS UNION

RAILWAYS ASSOCIATION OF ENGINEMEN

ZIMBABWE AMALGAMATED RAILWAYMEN UNION SC 8/05

in which Ziyambi JA echoed the following:-

“There is, I think, judging from the cases which have come before us, a misconception generally held by the Labour Court, namely, that it is, in terms of Section 89 of the Act, endowed with jurisdiction to entertain all applications brought before it.

Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application "in terms of this Act or any other enactment.”

This application wherein applicant is seeking the nullification of the disciplinary proceedings and that Respondent conducts a hearing de novo in the presence of his legal practitioner, is not one such application provided in Section 89 or any other enactment.

From the content of the application and the relief being sought, Applicant ought to have approached this Court by way of review and not by way of this unspecified application.  The rules of this Court, Statutory Instrument 59 of 2006 in particular Rule 16 provide for the procedure a litigant should follow when approaching this court on review.  Applicant did not follow this procedure.  I am therefore not persuaded by the submission that the way in which the application is couched it is tantamount to being an application for review.  Applicant is not a self-actor but is legally represented and a legal practitioner is expected to follow the Rules of the court when instituting proceedings.

On that note I agree with the Respondent when it raised a point in limine that this application is improperly before this Court as there is no provision for such an application in the Act and as it is neither an appeal nor an application for review.

Accordingly the Applicant cannot be granted the relief that he is seeking.

It is therefore ordered that the application be and is hereby struck off.

Jarvis Palframan–Applicant’s Legal Practitioners

Dzoro and Partners–Respondent’s Legal Practitioner