OK Zimbabwe Limited v Oliver Chiwar

IN THE LABOUR COURT OF ZIMBABWE                                       JUDGMENT            NO.LCH165/23

HELD AT HARARE 9 MAY 2023                                              CASE NO. LC/H/1168/22

AND 15 JUNE 2023



IN THE MATTER BETWEEN:-



OK ZIMBABWE LIMITED                                                    APPLICANT

AND

OLIVER CHIWARA                                                         RESPONDENT



Before Honourable Mr. L.M. Murasi



For Applicant                                          Mrs. R.T. L. Matsika

For Respondent                                         Mr. T. Ndoro



MURASI J:

On 18 November 2022, this Court dismissed Applicant’s appeal against the decision of the NEC.
Applicant is dissatisfied with the decision and intends to approach the Supreme Court for relief. This
is therefore and application in terms of section 92 F (2) of the Labour Act (Chapter 28:01).

Applicant’s prospective grounds of appeal are formulated as follows:

   1. The Court a quo erred at law in finding that there were no grounds of appeal
      before it because Appellant’s grounds of appeal were not ‘concise and precise as
       prescribed by law’. By so finding, the court a quo failed to take into account the
       fact that the Rules of the Labour Court which were in operation at the material
       time did not require that the grounds of appeal be concise and precise.




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    2. In addition and in any event, by so finding the court a quo made a material
       finding on its own without having invited either of the parties to address it on the
       matter. This constituted a gross irregularity.
    3. The Court a quo erred in finding that the Appellant was not entitled to take the argument
        that having deliberately absented himself from the proceedings which were conducted
        before the Employer, the Respondent was not entitled to challenge the outcome of the
        same. By so finding. The court a quo erred in the following respects;
        3.1 In failing to find that the issue, being a point of law, could be raised at any
           stage of the proceedings; and
        3.2 In finding that the issue ought to have been specifically pleaded in the notice of appeal.
    4. In addition, the court a quo erred in finding that there was a pending appeal by the
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        Respondent when the Employer held the hearing of the 13              of May 2022. By so finding, the
        court a quo failed to take into account the fact that the code of conduct did not provide for an
        appeal by an aggrieved employee to the Appellant’s Human Resources Manager.
    5. The court a quo furthermore erred in departing from the finding of the Local Joint Committee
        that by electing not to attend the hearing before the Employer, the Respondent had forfeited
        his right to challenge the proceedings which were held before the Designated Officer. Such a
        finding was not challenged on appeal and remained extant.
    6. Furthermore, the court a quo erred in finding, in the absence of a plea to that
       effect, that the Appellant was estopped from relying on the Respondent’s refusal
       to attend the proceedings which were conducted before the Employer.
    7. The court a quo erred in finding that the evidence which was led by the Complainant
       during the proceedings which were held by the Employer constituted of ‘speculation,
       conjecture and suppositions’. Such a finding disregarded the evidence that certain
       goods were not charged, that there were missing cash sale receipts, and that there
       was an improper use of manual cash sale receipts by the Respondent.
    8. A fortiori, the court a quo erred in finding that the finding of guilt was irrational.

Preliminary Issues

Mrs Matsika pointed out that Respondent was barred as the heads of argument were filed out of time.
She further submitted that Rule 26 of the Labour Court Rules, did not provide for the oral application for
the upliftment of the bar in respect of a Respondent. She therefore urged the Court to so find that the
Respondent was barred and proceed to grant the application as provided in the Rules. Mr. Ndoro
responded that the provision had a lacuna and that it was evident that the legislature could not have
intended such an anomaly and prayed that the Court allow the Respondent to make the application. The
Court determined that it was in the interests of justice to hear the application which was

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subsequently made. The Court thereafter condoned Respondent’s non-compliance with the
Rules in respect of the failure to file the heads of argument timeously. The explanation
tendered by Mr. Ndoro was reasonable and acceptable in the circumstances. The heads of
argument were therefore deemed to have been properly filed of record.

Applicant’s Submissions

Mrs. Matsika stated that she was going to abide by the documents filed of record. She further stated
that there was substance in the prospective appeal as the court had made findings on issues which
had not been pleaded by the parties. In this regard she referred to paragraph 20 and 22 of the
Applicant’s heads of argument. As far as the grounds of appeal were concerned, she argued that the
previous rules did not provide that they be ‘concise and precise’ and the court should have called
upon the parties to address it on that particular issue. She further submitted that a failure by the
court to act in such manner was a misdirection. Case law was cited in this respect.

Mrs. Matsika further addressed the issue of Respondent’s non-attendance at the hearing before the
Applicant. She argued that what Applicant had raised was appoint of law which could be raised at
any time as long there was no prejudice to the other party. She stated the Local Joint Committee
had raised this in its determination and that Respondent could not therefore seek to challenge the
outcome of that ruling. She therefore argued that the court had erred in not allowing the parties to
argue this point and that the Negotiating Committee had not made a finding on the issue. She
argued that Respondent could not have ‘appealed’ in terms of the Code of Conduct as there was
nothing to appeal against. She averred that there was no right to appeal.

As far as the merits for dismissal were concerned, she indicated that evidence had been adduced
showing Respondent’s guilt in so far as duplicate receipt books were missing and goods that were not
charged at the till points as it was Respondent’s duty to supervise and ‘watch’ the till points. It was also
contended that Respondent had walked out of the proceedings. She also conceded that the letter written
to the Respondent had advised him to appeal to the Local Joint Committee but stated that Applicant could
not held down to this ‘advice’ if it was inconsistent with the Code of Conduct.

In the heads of argument, it was stated that “the court made material findings without
having invited either of the parties to address it on the issues.” Case law was cited in
support of these averments. The heads of argument go on to detail the type of evidence
that the court should have considered in its determination.

Respondent’s Submissions

Mr. Ndoro stated that the Applicant’s prospective grounds based on the grounds of appeal were

misplaced as the Court’s ratio decidendi was not based on the nature of those grounds of appeal.

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As regards the failure of Respondent to appear, Mr. Ndoro stated that a reading of the Code
showed that a Designated Officer is allowed to suspend an employee once satisfied that the
employee has committed an offence. He stated that the Respondent was suspended and
brought before a hearing. He further stated that the correct Clause was 5.2 which gives an
employee the right to appeal and that Applicant had failed to dispose of that appeal and thus a
procedurally necessary step was omitted. It was also contended that Applicant granted
Respondent an unqualified licence to appeal to the Local Joint Committee and that once a party
has shown that it has waived a right, it cannot retract such action. He argued that the point was
not raised at the Local Joint Committee and the Negotiating Committee and that the Court in its
ratio came to the conclusion that the Applicant was estopped from the particular issue.

Mr. Ndoro stated that the prospective appeal has no merits. He submitted that the appeal
presented before the Court did not address any single finding of the Negotiating Committee.
He further submitted that a leave to appeal should not be used by the Applicant to re-shape
their arguments with the hope that the Supreme Court would arrive at a different conclusion.
He argued that the issues raised by the Applicant were factual matters and it had not been
demonstrated that the decision arrived at by the Court was irrational.

Respondent also filed detailed heads of argument. In paragraph 17, it was stated as follows:

        “It is submitted that there is no valid point of law being raised under this ground of
        appeal for the following reasons:
        a) It is trite that a default judgment is different from a judgment on the merits made in
            the absence of the other party. In principle, a default judgment is not appealable,
            however, if the court a quo or tribunal decided the matter on the evidence and
            submissions of one of the parties but in the absence on both parties, such as in
            casu, the resultant judgment is not a default judgment and is therefore appealable.
            That the outcome of the ‘employer’s proceedings’ was appealable is a point that was
            braised by the Respondent in his heads of argument.
            In casu, the Applicant conducted a full hearing of the matter as clearly shown in
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            the Appellant’s Outcome of Hearing dated 10 May 2010. However, there was
            no other party standing in as the Complainant since the Designated Officer only
            submitted his papers but did not himself appear before the Appellant.
            No reasonable court would arrive at a decision that proceedings in which only the
            adjudicator sat and enquired through documents constitute default proceedings.”
The heads of arguments further address the issue of Respondent’s non-attendance as having been

addressed at the LJC and was not raised by the Applicant before the NC. It was further argued that the

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findings of the NC were not ‘questioned’ in the appeal filed with the Labour Court and
the Respondent called for the dismissal of the application for leave to appeal.

Analysis

In The State vs Chikumbirike 1986 (2) ZLR 145 (S) it was stated as follows at 146 F-G:

        “The principle is therefore well established. It follows that in the present appeal, for
        the decision of the learned judge to be reversed, it must be shown that the learned
        judge committed an irregularity or misdirection, or that the manner in which he
        exercised his discretion was so unreasonable as to vitiate the decision made.”
Further, MAKARAU JA (as she then was) had this to say in Zimbabwe Institute of Management vs
Roderick Nhamo Kadungure SC 115/20:

        “It is my understanding from the above authorities that broadly speaking, an appeal
        from the Labour Curt to this Court is competent only if it questions what the law has
        said in other cases on the issue to be determined, presumably in matters where the
        court has discretion, or questions what the law is on the specific issue or issues
        raised in the appeal or attacks the decision on the facts as being irrational. The remit
        of this court in determining appeals from the court a quo is therefore fairly narrow.
        Put differently, the broad position of the law is that an appeal from the court a quo to this Court
        must call upon this Court to determine and pronounce on the correct and true rule of law on the
        matter in dispute or, if based on the facts of matter, to set aside the decision as being irrational. It
        cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

The first and second prospective grounds of appeal are clearly misplaced. As submitted by
Respondent’s Counsel, this Court did not anchor its decision solely on the defective grounds of
appeal. The Court lamented on the inelegance of those grounds and then proceeded to deal with the
matter on the merits. The ratio decidendi did not, therefore, rest on those grounds of appeal.
Evidently, a court is required to determine a matter based on what is placed before it, that is, the
pleadings. Grounds of appeal comprise the pleadings. To state that the Court should have requested
the parties to address it on the pleadings they would filed is the height of mischief. In this jurisdiction
where courts and tribunals utilize the adversary system, each party is expected to address that court
or tribunal on the pleadings it would have presented before that court or tribunal unless it is an issue
which the court or tribunal observes to one arising out of the pleadings and, only then, would it be
required to request the parties to address those particular issues.




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The third prospective ground of appeal is equally disingenuous. The record and the facts clearly
show that the issue of non-attendance by the Respondent was addressed by the Local Joint
Committee. None of the parties took issue with that finding. The same Local Joint Committee
went on find in favour of the Respondent. The Applicant did not take this up on appeal to the
Negotiating Committee. This Court made the observation that Applicant filed identical grounds
of appeal throughout up to this Court. The pertinent finding as regards this ground is that:

        “What then becomes interesting is that Appellant was lodging or has been
        lodging the same grounds of appeal even if the decision and levels are different”
Applicant did not raise the particular issue in the pleadings before this Court but then raises it a point
of law. It does not arise. As submitted by the Respondent’s Counsel, the proceedings themselves
did not amount to default proceedings as no party appeared before the trier of fact. The proceedings,
therefore, do not mutate to be default proceedings because a party chooses to give them that label.
In any event, the matter had been dealt with by the Local Joint Committee and it is assumed, by not
raising it before the Negotiating Committee on appeal, the Applicant was satisfied.

The fourth prospective ground of appeal is meritless. It seeks to equate a finding and an observation of
existing facts as reflected in the record. It is factual that the Respondent appealed to the Employer
decrying what he believed was an injustice. That was an observation made by the Court. That Applicant
did not attend to the appeal is also factual. That Applicant proceeded to deal with the matter when such
‘appeal’ had been lodged, is factual. The Applicant contends that the procedure adopted by the
Respondent was inconsistent with the provisions of the Code of Conduct. This is clearly not correct. The
procedure adopted by the Designated Officer is found in Clause 5.2. Clause 7 provides:

        “7.1 An employee who is aggrieved by the decision of a Designated Officer made in terms of
        Paragraph 5.2 may:

        7.1.1 Appeal to the employer;

        7.1.2 Any such appeal shall be made promptly and not later than seven (7) days
        after he was notified of the decision.”

Clearly, the procedure adopted by the Respondent was consistent with the provisions of
the Code. The Code refers to the Employer and not to a particular employee.
Prospective ground of appeal number five seeks to confuse issues. The Applicant was appealing against
the decision of the Negotiating Committee and NOT that of the Local Joint Committee. It is not clear what
Applicant means by ‘departing from the finding of the Local Joint Committee.’ In any event, what




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point of law is the Supreme Court expected to determine from this prospective ground of
appeal? I observe none.

I have already addressed issues that relate to the sixth prospective ground of appeal.

The seventh prospective ground of appeal deals with issues of evidence. The Applicant decries the
finding that there insufficient evidence to prove Respondent’s guilt in the circumstances. I have
noted in the heads of argument an attempt to refer to ‘evidence’ that was allegedly adduced before
the employer. I also note the considerable energy that has been spent in trying to show why it should
be found that there existed enough evidence. It is my view that Applicant’s insistence on re-visiting
the evidence supposedly given before the employer is an attempt to influence the Superior in
exercising a fresh jurisdiction in the matter. What the Court was dealing with was an appeal from the
decision of the Negotiating Committee. In a nutshell, that Committee found that:

   •   No evidence had been produced to prove the allegations against the Respondent
       and that the Applicant had principally relied on hearsay evidence.
   •   There was no evidence that Respondent was directly linked to the USD$100
       958-00 Kwekwe Branch shrinkage.
   •   There was no evidence that the Respondent was solely responsible for stock in the shop.

It was against these findings that Applicant appealed to this Court. This Court was therefore enjoined
to consider these against the backdrop of the evidence that placed before the Negotiating
Committee for consideration. The four corners of the record always guide an appellate court as to
wander beyond these boundaries or borders constitute a misdirection. This Court made the
comment at page 6 of the record that both tribunals were of the view that there was no evidence to
prove the matter on a balance of probabilities. At page 7 of the judgment, this Court goes into the
nature of the evidence was given ‘against’ the Respondent. I need not repeat what is contained on
that page save to stress that by any stretch of imagination, the comments and responses given by
the Designated Officer clearly show that there was no evidence linking the Respondent to the
commission of the offence. Such comments as ‘you are part of parcel of the shortage’, ‘you are also
included among these security guards’, ‘ this shrinkage involves everybody at the branch’, were the
responses given by the Designated Officer. Do these pronouncements amount to evidence? I think
not. Is there room that the Supreme Court will view this finding a misdirection or irrational in the
circumstances? The answer must be in the negative. The principle is that an appellate court will find
the existence of irrationality in circumstances where the decision is so devoid of logic or common
sense to the extent that no reasonable tribunal facing the same facts would have arrived at the same
conclusion. It is my considered view that this prospective ground of appeal is meritless.



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The issues raised in the eighth prospective ground of appeal has adequately been
addressed in the seventh ground.

The application for leave to appeal ought to be dismissed.

In the result the application for leave to appeal to the Supreme Court is hereby dismissed with costs.




Wintertons Legal Practitioners-                Applicant’s legal practitioners

Saidi Law Firm-                                Respondent’s legal practitioners.




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