Phillim Chinembiri v T.M. Supermarket

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/64/2021
HARARE, 26 MAY 2021 &
CASE NO LC/H/36/21
4 JUNE 2021
---------


IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/64/2021

HARARE, 26 MAY   2021 &			   CASE NO LC/H/36/21

4 JUNE 2021`

In the matter between:-

PHILLIMON CHINEMBIRI			APPLICANT

AND

T.M. SUPERMARKET				RESPONDENT

Before the Honourable Manyangadze  J

For the Applicant		Mr E. Maponga (Trade Unionist)

For the Respondent		Ms V. Musora (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of an Appeals Officer appointed by the respondent in terms of s 8 of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006. The Appeals Officer upheld the decision of the Hearing Officer, who found the appellant guilty of misconduct and imposed a penalty of dismissal.

The brief facts of the matter are that the appellant was employed by the respondent as Bakery Section Manager. It is alleged that on 22 November 2020, he was caught whilst he was in the process of destroying some bakery products without the required documentation. As a consequence, he was charged with misconduct, the charge being contravening s 4(a) of S.I. 15/06;

“any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract”

In a determination issued on 23 December 2020, the Hearing Officer found the appellant guilty as charged, and imposed a penalty of dismissal.

On 6 January 2020, the Appeals Officer upheld the Hearing Officer’s determination, thereby dismissing the appeal in its entirety. This prompted the appeal to this court. The grounds of appeal are stated as follows:

“1. The charge of intending to destroy bakery products worthy $934.15 at cost before recording is totally denied.

2.    The shrinkage were not caused by the appellant but by the complainant who used to interfere and keep the Bakery ISTS for raw materials for some days hence the shrinkages.

3.    The appeals officer grossly erred at law by disregarding evidence from the branch administrator that at times papers will delay being processed because the extension clerk will be performing to other duties as a warehouse assistant.

4.  The appeals officer grossly erred at law in disregarding evidence from senior extension officer and his administrator who confirmed during cross examination.

5.  The appeals officer grossly erred at law when h failed to holistically consider the submission from the accused, but only rely on the submissions from the complainant.”

The respondent raised a point in limine to the effect that the notice of appeal is fatally defective, in that it does not contain valid grounds of appeal. In particular, the respondent averred that;

Grounds of appeal 1 and 2 are made up of mere statements. They do not disclose any misdirection made by the Appeals Officer.

Grounds of appeal 3, 4 and 5 are not clear and concise.

Grounds of appeal 1 and 2

In respect of these grounds, the respondent avers that these are “simple statements, which do not make reference to the determination of the Appeals Officer”.

Indeed, a look at the said grounds of appeal shows that no reference is made to the analysis  made by the Appeals Officer in his determination. Ground 1 simply reads like a plea of not guilty. As correctly observed by the respondent, in paragraph 10 of its heads of argument;

“This would effectively be a statement in defence, which was raised in the initial disciplinary hearing.”

It appears the appellant is mistaking the appeal to be a rehearing of the disciplinary hearing, in which he is called upon to restate his defence. He does not make any attempt to demonstrate in what way the Appeals Officer misdirected himself in his assessment of the findings of the Hearing Officer.

Ground 2 suffers a similar defect. The appellant merely states that he was not the one responsible for the shrinkages but the complainant. Again, this is in the nature of a defence, which defence he advanced at the initial disciplinary hearing.  There is no specific challenge to the findings or conclusions reached by the tribunal a quo, which would assist this court in determining whether such findings or conclusions were properly made.

In other words, grounds 1 and 2 do not read like grounds of appeal at all. They read like a plea to the charges. The court is not put in a clear picture as to what it is that is being appealed against.

Grounds of appeal 3 to 5

The respondent avers that these grounds are vague. They are stated in broad and general terms.

Ground 3 for instance, alleges that the Appeals Officer disregarded the evidence from the branch administrator on delays in the processing of papers. The offence is about destroying bakery products before they are signed off by his superiors. One is at pains as to how to link this averment to the alleged unauthorized destruction.

Ground 4 is even worse. It appears like an incomplete sentence. It was left hanging. One wonders what it is that was confirmed during cross-examination, and what aspects thereof was disregarded.

Ground 5 is a broad and general assertion that the Appeals Officer failed to consider submissions from the appellant. As pointed out by the respondent in paragraph 14 of its heads of argument;

“It is not elaborated what submissions were disregarded and how the Appeals Officer erred in failing to consider the same.”

It has been stated in a number of case authorities that grounds of appeal must be clear and concise. It must be clear, ex facie the grounds of appeal, what it is the appellant is impugning in the court a quo’s findings. In Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/17, GARWE JA (as he then was) went to great lengths in emphasizing and clarifying the need to have grounds of appeal that are clear and concise. From pages 11 to 16 of the cyclostyled judgment, the learned judge of appeal examined the leading authorities on the subject. He made reference to McNALLY JA’s remarks in the case of State v Jack 1990 (2) ZLR 166, at 167 D-G:-

“This amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of appeal cannot know what to say in response to  it … It is necessary to draw the legal practitioners’ attention again to the judgment of BEADLE J (as he then was) , in R v Emerson & Ors 1957 R&N 743; 1958(1) SA 442 (SR)…

It seems to be widely believed that when a client who has been convicted and sentenced belatedly instructs a legal practitioner, all that is necessary is that a notice of appeal be lodged setting out the most cursory and meaningless grounds with (sometimes) the promise that proper grounds will be substituted when the record is available. This is not so. A notice of appeal without meaningful grounds is not a notice of appeal. Since it is a nullity, it cannot be amended.”

In S v Ncube 1990 (2) ZLR 303 (SC), reference was also made to the remarks of BEADLE J in R v Emerson, supra, at 748 D-E:-

“I do not consider that such general grounds of appeal as “the conviction is against the weight of the evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law” are a compliance with the rule. It follows that where the only ground of appeal given in the notice of appeal is a vague one of this description the notice of appeal must be considered to be bad. The effect would thus be the same as if no notice of appeal had been given at all…’’’’

In casu, it has been shown that the grounds of appeal are vague, too broad and general. It is not for the court to figure out what the appellant really meant or intended to challenge in the appeal. See Songono v Minister of Law and Order 1996 (4) SA 384.

The appellant had no meaningful response to the point in limine. All he could say was that after drafting his grounds of appeal, they would then be supported by his heads of argument. This was the only explanation advanced on behalf of the appellant by his Trade Union representative. I agree with the remarks made by Ms Musora, counsel for the respondent, that whilst heads of argument are meant to support grounds of appeal, the grounds of appeal must in the first place be valid grounds of appeal. One cannot argue in support of grounds of appeal that are invalid and fatally defective.

In the circumstances, having regard to the nature of the grounds of appeal looked at, I find merit in the point in limine raised by the respondent. The proper course of action is to strike the appeal off the roll.

In the result, it is ordered that;

The point in limine raised by the respondent be and is hereby upheld.

The appeal be and is hereby struck off the roll.

The appellant bears the respondent’s costs.

Honey & Blanckenberg,  Respondent’s Legal Practitioners