Pulse Medical Care (Pvt) Ltd t/a Pulse Pharmaceuticals v TINAAPI NYAWO

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/139/25
HARARE, 25 MARCH, 2025 AND
3 APRIL 2025
CASE NO LC/H/139/25
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/139/25

HARARE, 25 MARCH, 2025 AND

3 APRIL 2025                                                   		CASE NO LC/H/139/25

PULSE MEDICAL CARE (PVT) LTD

T/A PULSE PHARMACEUTICALS				APPLICANT

TINAAPI NYAWO 					 		RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant			- A. Maguchu, Attorney

For Respondent		- N. Mangoi, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a belated appeal. The application was made in terms of Rule 22 of the Labour Court Rules, 2017. Respondent opposed the application.

It is common cause that on 30th December 2024 Arbitrator S. Mudimu issued an award which ordered applicant to pay respondent an amount US$600, 112.13 as outstanding salaries and

benefits together with damages in lieu of reinstatement. On 18th February 2025 applicant filed the present application.

The pertinent parts of the supporting affidavit by applicant’s attorney stated that,

“3. Disgrunted with the award of 30 December 2024, our client furnished us with instructions to file an appeal against the award. I prepared the papers in conjunction with my superior Mr Maguchu.

4. On 20 January 2024, I was tasked with the duty to file the appeal… Thereafter I filed.

5. On 10 February 2025, I was notified through the respondent’s notice of response that the wrong arbitration award had been attached to the notice of appeal.

8. When I was filing the appeal, I searched for the award in my machine and attached what I thought to be the award. It was served as ‘Pulse Nyawo Award.’ Based off of (sic) my conviction that I did not have the electronic copy of the 26 September 2024 award and that I had ensured that the 30 December 2024 award specifically be scanned and emailed to me, I was convinced that I had attached the correct award.

9. … Hence, when I was filing the appeal into the IECMS and I searched for the award, however, I picked the wrong award and attached it to the appeal…

12. Upon realizing the error I had made, I jumped into action to prepare an application for condonation for the applicant and to depose the present affidavit. I express my sincerest of apologies and deepest of regrets to the court…”

Respondent countered in his opposing affidavit thus;

“9.1 The explanation for delay as demonstrated in the affidavit of Namatai Nyasha Katsande is unreasonable. Firstly, counsel avers that she attached wrong affidavit to the application. From her explanation from paragraphs 8-9 of her affidavit, she attached an award without checking whether or not it was the correct award … That shows that the Applicant’s counsel was not serious in what she was doing.

10.1 This is disputed. Clearly this intended ground of appeal lacks merit in that in the arbitration proceedings, as the record will show, I clearly discharged the onus on my part to prove the Applicant’s liability for constructive dismissal and my entitlement to cash in lieu of leave, arrear salary, medical aid and fuel and the quantum thereof.

10.2 Further to that, in the proceedings aquo, I clearly demonstrated how the appellant demoted me from the post of Managing Director to the position of Group Financial Director… stripped me of all my job responsibilities.

10.3 Additionally, the Appellant confiscated the email address assigned to me, directed banks suppliers and stakeholders to suspend all communication with me and inform multiple stakeholders that I was no longer Appellant’s employee. I also suffered victimization under Appellant’s Group Chief Executive Officer…”

Analysis

The impugned arbitration award was issued on 30th December 2024. In terms of Rule 19 of the Court’s Rules a party wishing to appeal must do so within 21 (twenty-one) days of receipt of the award. Applicant stated that he received the award on 6 January 2025 and therefore ought to have appealed on or by 4 February 2025. The present application was filed on 18th February 2025. Therefore the application was late by 8 (eight) working days. This is not an inordinate delay. The

explanation therefor was that the applicant through his attorney filed an abortive appeal wherein he only realized late that he had attached the wrong award to the appeal. The conduct of the attorney does not measure up to the standard of a diligent attorney but it is not an uncommon error in legal offices.

This matter really turns on the prospects of success in the intended appeal. The draft appeal has 6 grounds of appeal. The 2nd ground reads;

“2. The arbitrator erred at law in failing to determine whether the respondent’s claim was presented in an incurably self-destructive manner in that claimant averred that he only handed in the letter of resignation after the applicant had already dismissed him.”

This is buttressed by respondent’s statement of claim dated 22 January 2024 which stated,

“3.11 On the 13th October 2023 the Claimant met the respondent’s Group Chief Executive Officer (GCEO) at MiGym as scheduled …. In the meeting the respondent’s GCEO told the claimant that the relationship had ended and that his package was going to be worked out. The claimant then advised the respondent’s GCEO that he already noticed that the situation and the employment relationship had deteriorated. The claimant handed the respondent’s GCEO the letter advising him that he had already planned to leave the company due to continued victimization.”

In his analysis the Arbitrator noted that;

“It is claimant’s submission that on the 9th October 2023 he was informed of mistrust issues in a meeting with the Group CEO. And on the 10th October 2023 the respondent placed him on mandatory leave. Being followed a verbal dismissal by the respondent’s Group CEO on 13th October 2023, the Claimant presented a notice of his intent to leave due to victimization.”

Finally the Arbitrator concluded that respondent was constructively dismissed. The finding is suspect considering the above excerpts which suggest that respondent “resigned” after respondent had verbally dismissed him. Constructive dismissal applies where the employee terminates employment due to intolerable conditions created by the employer. Thus it is safe to say at this stage applicant has made out an arguable case as regards the central issue of constructive dismissal.

Conclusion

The Court is guided by the dicta in the case of;

Chibanda v Harare SC 83/21

Per Hlatshwayo JCC

“It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success … The appellants are required to show they have an arguable case on appeal…”

Underlined for emphasis.

In casu, the delay is not inordinate. The explanation therefor is plausible. Lastly applicant has an arguable case in the intended appeal. Thus the Court is persuaded to exercise its discretion in favor of the condonation sought.

Wherefore it is ordered that,

That the application for condonation be and is hereby granted;

Applicant shall file his appeal to this Court within 10 (ten) days of this order; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E