Rackem Mukunyadzi v Ariston Holdings t/a Favco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/206/2020
HARARE, 8 JULY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/206/2020

HARARE, 8 JULY 2020				      CASE NO. LC/H/APP/675/19

AND 11 SEPTEMBER 2020

In the matter between:-

RACKEM MUKUNYADZI					Applicant

And

ARISTON HOLDINGS T/A FAVCO			Respondent

Before Honourable B.T. Chivizhe, Judge

For Applicant		Mr R. Matsikidze (Legal Practitioner)

For Respondent		Mr A.K. Maguchu (Legal Practitioner)

CHIVIZHE, J:

This is an application for condonation for late filing of an application for leave to appeal and for extension of time within which to file an application for leave to appeal to the Supreme Court. The application is opposed.

PARTIES SUBMISSIONS

The Applicant through his written and oral submissions submits that he has strong reasons for his application to succeed. He submits that the delay is not inordinate it is only a day’s delay. His explanation for the delay is that he could not have filed the application for leave to appeal on time because he had travelled out of the country only returning to Zimbabwe on the 29th of November 2019 which was the last day for the filing of an application for leave to appeal. The Applicant submits that over and above the good explanation he also has good prospects of success on appeal. On the issue of balance of convenience he hinges this on his prospects of success. He submits that the balance is tilted in his favour as his intended appeal has very good prospects of success. He has referred the court to Maheya vs Independent African Church (citation).

The Respondent is opposed to the granting of the application as sought. The Respondent through written as well as oral submissions emphasized on the need for expeditious settlement of labour disputes as outlined in Section 2A(1)(b) of the Labour Act [Cap 28:01]. It is Respondent’s contention that the Applicant having failed to expeditiously prosecute his matter the court should not be inclined to grant condonation. This is when regard is made to the fact that although the delay is short, the Applicant has however failed to tender any explanation for the delay. The explanation tendered that he had travelled outside the country should not, in the absence of concrete supporting evidence, be accepted by the court. The court should dismiss the feeble explanation so tendered. On prospects of success the Respondent’s submission is that the application for leave carries no prospects of success.

THE APPLICABLE LAW

The factors that the court ought to consider have been laid out in a plethora of cases. In Kodzwa vs Secretary for Health & Anoe 1999 (1) ZLR (S) 315 there were outlined as follows;

The degree of non-compliance and the reasonableness of the Applicant’s explanation for the default;

The prospects of success; and

The Respondent ’s interest in the findings of the case;

The convenience of the court and avoidance of unnecessary delay in the administration of justice

EXTENT OF DELAY

The delay in this case is very minimal. It is a delay of one day.

EXPLANATION TENDERED

In regards the explanation the Applicant avers that he could not lodge his application for leave to appeal on time because he had travelled out of the country and only returned to Zimbabwe on the 29th of November 2019 which was the very last day for the filing of the application.

The Respondent has taken issue with the Applicant submission on this point. The Respondent’s position is the Applicant’s averments, in the absence of any supporting evidence, cannot be accepted by the court. The Applicant could have annexed a page of his passport to prove that he indeed was out of the country. Despite this point having been taken in Respondent’s papers the Applicant still failed to produce the passport even on the date of hearing. The Respondent’s prayer is for the Applicant submission to be disregarded as it is unsupported by evidence.

The Applicant has tendered as the explanation for delay his absence from the country. He indicates in his papers that he was abroad. No effort was made to indicate when he went outside the country, where he went to i.e. the destination. No evidence of the passport page has been placed before the court. During the hearing, Mr Matsikidze emphasized that the evidence under oath was adequate for the purpose and that the Respondent was being irresponsible in requesting for the copy of passport page. Nothing could be more further from the truth. It still remains a trite position at law that one who avers bears the burden of proof. The Applicant having made the positive allegation that he was outside of the country clearly has the burden to prove the averment.

A litigant who is seeking condonation before the court is also required to take the court into his confidence. The Applicant has failed dismally in this respect. The Applicant could have at least tendered a copy of his passport page indicating the dates of travel to and from the country. He did not. He is simply asking the court to accept his explanation hook, line and sinker in the absence of evidence. The court cannot do that. It is apparent on this basis the Applicant having failed to place evidence in support of the averments made it must follow that no explanation has been tendered for the delay in filing the application for leave appeal.

PROSPECTS OF SUCCESS IN THE INTENDED APPEAL

The grounds as captured in the Draft Notice of Appeal read as follows;

“

The Court a quo erred at law in not making a finding that the charges were as a result of the retaliation by the Respondent after Applicant rejected the voluntary retrenchment on the 14th January 2013. Put differently, an employer cannot bring misconduct allegations simply because an employee has refused voluntary retrenchment. The employer should have raised compulsory retrenchment instead of raising the spurious allegations.

The Court a quo erred at law in overturning a finding by the Arbitrator that there was no effective communication between the Applicant and Respondent’s Managing Director when clearly on record there is no evidence that there was such communication even on the Disciplinary Hearing record.

The Court a quo erred at law by confirming that the material that was circulated was pornographic yet there was no report from the Censorship Board that indeed the material was pornographic in nature in terms of the Censorship and Entertainment Act. Put differently, the fact that a partially revealing photo was circulated does not necessarily mean that it was pornographic material.

The Court a quo erred at law in not making a finding that in terms of S12B (1) of the Labour Act [Cap 28:01] as read with S65 (1) of the Constitution of Zimbabwe, a mere finding that an employee has committed an offence does not automatically result in the dismissal of that employee. Put differently, the issue that the discretion lies with an employer once misconduct has been established is no longer part of the law in Zimbabwe after the promulgation of S65 of the Constitution of Zimbabwe. ”

In relation to intended first and second grounds of appeal the Applicant seeks to attack the factual findings made by this court. He submits that this court erred by failing to make a finding that the Respondent only raised disciplinary charges as an act of retaliation. He also suggests that the court erred by altering the finding made by the Arbitrator that there was no effective communication between him and the Respondent’s Managing Director. A close look at both grounds do not reveal clear points of law. Section 92 F of the Labour Act [Cap 28:01] makes it clear that appeals from the Labour Court to the Supreme Court should be on points of law. Both grounds do not appear to be raising points of law. Assuming I am wrong however I still believe the Applicant has poor prospects of success on both grounds as presented. This court having found that no evidence had been led in the hearing a quo to prove the point of Respondent having laid charges in retribution the Applicant still has an uphill task as the record does not support the averment. He is still unable to demonstrate by reference to the record of proceedings which evidence the court missed in arriving at the perceived wrong conclusion. In the second ground of appeal the Applicant is arguing that he was not responsible for the poor communication between him and the Respondent’s Managing Director. This Court therefore erred in overturning the Arbitrator’s finding on this point.  The Applicant is splitting hairs. The charge he was facing is of failing to manage the transfer of the employees in that he failed to communicate with his immediate superior. Through this ground he appears to be confirming the point of poor communication. The Applicant clearly cannot succeed on this ground.

In the third ground of appeal the Applicant seeks to attack this court’s findings to the effect that the photograph circulated was pornographic. He states that such a finding could only have been made by the Censorship Board after considering the picture in issue. His submission is that in view of Respondent failure to refer the matter to the Censorship Board he should not have been found guilty of the charge. The Applicant once again has poor prospects of success on this ground. The burden of proof in labour proceedings is on a balance of probabilities. See Charles Marevesa vs TelOne (Private) Limited SC 32|19. The issue is whether the Respondent discharged the onus on it to prove that Applicant had committed an act which was inconsistent with his contract. The facts showed that Applicant had circulated a photograph showing the penis of a soccer player with words captioned underneath the picture as ‘Razorman.’ The issue would be whether the Respondent’s employer found this conduct offensive and whether it was proper for Applicant to have circulated this to colleagues on the business main account. There would clearly be no need for the employer to refer the issue to the Censorship Board. The Applicant clearly has poor prospects of success on this ground.

The last ground of appeal seeks to attack this court’s upholding of penalty on the basis of a constitutional point. The Applicant submits that this court erred and misdirected itself in upholding the Dismissal penalty by applying the wrong test or principle. It is Applicant’s contention that the court in arriving at its determination relied on the entrenched principle in this jurisdiction that it is within the employer’s discretion where an employee is found guilty of a serious charge going to the root of the contract to impose the dismissal penalty. It is Applicant’s contention that this court ought to have instead been guided by the provisions in Section 65 (1) of the Constitution which require the application of fair standards in sentencing. The Applicant placed reliance on the decision in Z. Sidumo & Another vs Rustenburg Platinum Mines Ltd & Ors CCT 85/06 which was a landmark decision in South Africa Labour Law, which, amongst other things established the test to be used by Judges in reviewing awards by Commissions.

On this basis it is Applicant’s submission that the matter ought to be referred to the Supreme Court, for that court to determine the constitutional issue. According to Applicant the point is very important considering that Section 65 (1) was introduced through the new Constitution in 2013 the courts/tribunals should now be applying a different test in sentencing matters.

The Respondent’s position is that the issue being raised was not raised and argued before the Labour Court. It cannot therefore be properly raised before the Supreme Court. The Respondent placed reliance on Dandazi vs Wanike Colliery Company Limited 2001(2) ZLR 298(H) and Gazi vs National Railways of Zimbabwe SC 60|12. Mr Maguchu in oral submissions also emphasized that no specific constitutional question having been taken through Respondent submissions for referral to Supreme Court as required under the provisions of the Constitution the court ought to simply dismiss the point.

In the court’s ruling the constitutional point taken by the Applicant clearly stands to be dismissed. There are two compelling reasons for this. First is the point as advanced by the Respondent that the constitutional issue sought to be raised in this application was not raised before the court and argued by the parties. It is clear that in the proceedings before this court the Applicant did not raise the constitutional issue which he now seeks to raise as to whether the courts/tribunals ought to now apply a different standard, that of fairness (as was found in Sidumo case) more so in view of the introduction of Section 65 (1) in the Constitution. It is common cause Section 65 (1) referred to guarantees to every person the right to fair and safe labour standards. That issue not having been placed before this court it would not be proper for Applicant to therefore seek to raise it on appeal to the Supreme Court.

The Respondent correctly placed reliance on Dandazi vs Wanike Colliery Company Limited 2001(2) ZLR 298(H) and Gazi vs National Railways of Zimbabwe SC 60|12 where Gwaunza JA (as she then was) on page 3 held that:

“The court a quo correctly observed from the outset (an observation not disputed by the Appellant) that the Appellant’s grounds of appeal constituted a complete departure from the grounds that formed the basis of his appeal to the Respondent’s General Manager. If the Appellant’s appeal to the General Manager against what was effectively a default judgement against him is to be regarded as a form of procedural transgression, it is evident that he compounded this conduct by advancing completely new grounds of appeal before the Labour Court. He therefore effectively enjoined that court to determine matters which:

Had not been placed before the General Manager; and the Respondent had not had the opportunity to consider or make any pronouncement on.”

It is also clear from Applicant submissions that the Applicant intends to take the constitutional issue to the Constitutional Court via the Supreme Court. If indeed this is the intention then the requirements for that approach have not been met. In the Cold Chain (Pvt) Ltd t/a Harvest vs Robson Makoni CC28|2017 the requirements were stated as follows;

“The requirements for leave to appeal to the Court from a subordinate court are these:

Firstly, there must be a constitutional matter for determination by the Constitutional Court on appeal.  The reason is that in terms of s 167(1) of the Constitution the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters.  Rule 32(2) of the Constitutional Court Rules makes it clear that only a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only has a right to apply for leave to appeal to the Constitutional Court. (the underlining is for emphasis).

Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it “a statement setting out clearly and concisely the constitutional matter raised in the decision”.  In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court.  If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court as a litigant cannot allege that the subordinate court misdirected itself in respect of matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties.  See Nyamande & Anor v Zuva Petroleum CCZ 8/15.

Under s 332 of the Constitution a constitutional matter is one in which there is an issue involving the interpretation, protection or enforcement of the Constitution. Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.”

Malaba CJ further down in the same judgment stated as follows;

“For an applicant to succeed in an application of this nature, he or she must show that the constitutional issue raised in the court a quo is one which the determination by the court was necessary for the disposition of the dispute between the parties.  In other words, the decision on the constitutional matter must have been so inextricably linked to the disposition of the controversy between the parties that the success or failure of the relief sought was dependent on it.  A Karger, in his book, Powers of the New York Court of Appeals, 3 Ed, at p 245 states the principle thus:

“The constitutional question must be both directly involved in the Appellate Division order and substantial.  The appellant has the burden of establishing the direct involvement of the constitutional question.”

It is clear that on the basis of Cold Chain decision that where there is no issue raised in the proceedings in the subordinate court requiring interpretation, protection or enforcement of a provision of the constitution then there is no constitutional matter. It would only have been after the court had been invited to give effect to the constitutional right to fair and safe labour practices as set out in section 65 (1) of the Constitution that this court would have been enjoined to interpret that provision. In the absence of that request having been made in the main proceedings it must follow that no constitutional issue arose. There is therefore no constitutional issue for referral to the Supreme Court.

It is also clear from the draft order sought that the relief the Applicant seeks is to have this court decision set aside and that he be reinstated into employment without loss of salary and benefits. The nature and content of relief clearly shows the Applicant is only concerned with the correctness of this court’s decision. The purported constitutional issue was simply thrown in as bait should the court find that the intended grounds of appeal have no prospects of success. If indeed Applicant was concerned about the alleged infringement of his rights as provided under Section 65 (1) of the Constitution through the approach taken by this court in assessing the issue of penalty then surely the intended relief sought would have reflected this position.

DISPOSITION

The Applicant has failed to proffer a reasonable explanation for the delay in filing his application leave. His intended grounds of appeal also carry no prospects of success; the application for condonation must therefore fail.

In the result it is ordered as follows: the application be and is hereby dismissed with costs.

Matsikidze Attorneys at Law, applicant’s legal practitioners

Messrs Dube, Manikai and Hwacha, respondent’s legal practitioners