NMB Bank Ltd v Lancy Makande

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/120/2014
HARARE, 24 FEBRUARY 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/120/2014

HARARE, 24 FEBRUARY 2014                                               CASE NO. LC/MC/21/12

& 14 MARCH 2014

NMB BANK LTD						Applicant

LANCY MAKANDE						Respondent

Before The Honourable G. Musariri, Judge

For Applicant		Mr. S. Sadomba, Attorney

For Respondent		Mr. L. Makande, Respondent

MUSARIRI G:

Applicant’s sole ground for review is worded as follows,

“The NEC Appeals Board misdirected itself in failing to deal with the two appeals separately, as directed by the order of the Labour Court dated 20 October 2011. By lumping the two appeals the NEC Appeals Board acted unprocedurally and in defiance of the order of the Labour Court.”

The relevant portion of this Court’s order in question ordered that,

“2. The matter is remitted back to the NEC for it to deal with the two (2) appeals separately;”

The two appeals concerned Respondent’s demotion and later dismissal by Applicant.

The NEC’s determination dated 30th March 2012 is filed of record.  Under the subtitled “Background”, it acknowledged this Court’s order thus,

“The Labour Court remitted the matter to the NEC to deal with the two cases separately.”  Under the subtitle “NEC Appeals Board analysis of matter” it proceeded

to deal with the appeals.  It began as follows’

“In dealing with the matter the NEC considered the effect of the first appeal after the G & DC imposed the sanction of a final written warning and demotion on appellant.”

It reasoned that,

“The penalty of demotion imposed on the employee was viewed by the NEC as too severe, and that it was going to materially change the contract of employment.”

It then determined that,

“For the reasons given above, the NEC appeals board varied the decision of G & DC by removing the aspect of demotion while retaining the final written verdict.”

It is clear that the aforequoted analysis and determination dealt separately with the first appeal against demotion.  The NEC then went further to rule that,

“For the avoidance of doubt the purported transfer was illegal as it was linked to the faulty decision of the G & DC.  Accordingly, the purported second hearing and its outcome (dismissal) is an event that never took place in the eyes of the law.”

The outcome of the second hearing was the dismissal from employment of Respondent by Applicant.  It is therefore clear that the NEC also dealt with the second appeal which challenged the dismissal. The NEC could have heard the appeals on different dates and given separate determinations.  However this Court only ordered the NEC to “deal with the appeals separately.”  It did not prescribe the exact procedure to be followed.  The NEC adopted a procedure which effectively considered the appeals separately.  To hold otherwise would be to put form above substance.  Justice bids us to do the reverse by putting substance above form.

Wherefore it is ordered that,

The application is hereby dismissed , and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E