Rainbow Tourism Group v Rodney Moyo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/663/14
HARARE ON 25th SEPTEMBER , 2014
CASE NO. LC/H/342/13
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/663/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/663/14

HARARE ON 25th SEPTEMBER , 2014			             CASE NO. LC/H/342/13

AND 10th OCTOBER, 2014

In the matter between

RAINBOW TOURISM GROUP		–	APPLICANT

And

RODNEY MOYO				-	RESPONDENT

Before The Honourable R.F. Manyangadze, J

For Applicant :	Mr A.K. Maguchu  (Legal Practitioner)

For Respondent:	Miss L. Shambamuto (Legal Practitioner)

MANYANGADZE J,

This is an application for condonation for late filing of a Notice of Response.

The Applicant was served with a Notice of Appeal on 21st May 2013. In the Notice of Appeal, the Respondent is challenging the decision of the Applicant company’s Appeals Officer, who confirmed Respondent’s dismissal from Applicant’s employment for misconduct.

The Applicant, who is contesting the appeal to the Labour Court filed by the Respondent, was supposed to file its Notice of Response within 14 days of receipt of the Notice of Appeal. It did so on 22nd July 2013, 31 days after the prescribed time limit.

The requirements for an application for condonation for non-compliance with the Court’s rules are well-established. In this regard, the Applicant referred the Court to the case of Maheya v Independent African Church S-58-07 in which it was stated inter alia,

“In considering an application for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice….”

The Court then went on to list some of the factors to be considered. These include the degree of non-compliance, the explanation for it, and the prospects of success on appeal.

In the same regard, the Respondent made reference to the case of Bishi v Secretary for Education 1989 (2) ZLR 240 (HL) wherein the factors were outlined as:

The degree of non-compliance with the rules;

The cause of the delay and the explanation proffered for the same;

The importance of the case;

The prospects of success on the merits;

The avoidance of unnecessary delay in the administration of justice

Potential prejudice to the other party and the interests of justice and fairness

In the present application, the degree of non-compliance is one month. The Notice of Response was supposed to be filed by the 6th of June 2013. It was filed on the 22nd of July 2013, falling out of the dies induciae by 31 days. Given the fact that there have been cases where condonation has been granted for much longer periods, one month cannot be regarded as inordinate. The period, per se, is not proof of tardiness. It is often considered together with the explanation for the delay.

In casu, the explanation was that the Notice of Appeal was served directly on the Applicant. The Applicant erroneously assumed that service of the same had been effected on  its legal practitioners. As a consequence of this erroneous assumption, the dies induciae passed before the Applicant’s legal practitioners filed the required response.

I find the explanation unconvincing. The Applicant’s Human Resources Director is a very senior official in the organization. As submitted by the Respondent in its Heads of Argument, she is expected to appreciate the exigencies of Court documents. The documents concerned a matter she was well aware of, as it had gone through the company’s disciplinary procedures. Receipt of a Notice of Appeal in respect of that matter should have immediately made her contact the Applicant’s legal practitioners. A reasonable person in her position would not have comfortably sat back, assuming that their lawyers were attending to the matter. She should not have waited for the lawyers to follow up the matter, as suggested in her affidavit. It should have been the other way round.

There was therefore, in my view, an element of tardiness or dilatoriness in the manner in which the appeal papers were handled by the Applicant, resulting in their belated filing of the Notice of Response.

The matter however, does not end there. Other factors, such as the prospects of success, come into play.

The record shows that Respondent was charged in terms of the Applicant’s Code of Conduct, Section 1.2.28 thereof. Misconduct under this Section is classified as gross. It is conduct which is inconsistent with the express or implied conditions of the contract of employment.

The facts forming the basis of Respondent’s misconduct case are reflected in the minutes of the appeal hearing filed of record. They involve the importation of a large quantity of blankets using the company’s freight facilities, and the procurement of goods at inflated prices. The Respondent was employed at a managerial level, as Project Manager.

The matter basically deals with the factual findings of the Appeals Officer. The findings were to the effect that it was not proved that the Respondent was warned by senior management about the alleged misconduct. The warning was not documented, to show that the misconduct in question was dealt with and disposed of. It was also found that there was overcharging, in respect of the procurement offence.

The Appeals Officer’s findings also show that the employer viewed Respondent’s misconduct seriously, having regard to his senior position in the company. In the circumstances, Respondent has an uphill task persuading an appellate court to interfere with the factual findings of the Applicant’s disciplinary authority.

Notwithstanding the element of negligence seen in the Applicant’s filing of the Notice of Response, on the prospects of success, the stakes appear to be against the Respondent. The pertinent factors, as already outlined in this judgment, are considered cumulatively. This is what HLATSWAYO J. (as he then was) emphasized in the case of Mazvimbakupa v City of Harare HH-92-05. After outlining the factors, the learned Judge stated:

“The above factors are to be considered cumulatively. Thus, for instance the length of the delay is considered in the light of the explanation thereof and the prospects of success on the merits.”

In my view, taking all the factors cumulatively, the justice of this case should be met by granting the application for condonation so that the matter is disposed of on the merits. It is accordingly ordered that;

The application for condonation of late filing of Notice of Response be and is hereby granted.

The Notice of Response filed on 22nd July 2013 be and is hereby deemed to be duly filed.

The Registrar shall set down the appeal filed under Case Number LC/H/342/13 at the earliest available date.

Costs shall be in the cause.

Messrs, Dube, Manikai & Hwacha – Applicant’s legal practitioners

Matsikidze and Mucheche – Respondent’s legal practitioners