Rakey Dende v Olivine Industries (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/07/2013
HELD IN HARARE, NOVEMBER 15, 2011
CASE NO. LC/H/614/2010
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/07/2013

HELD IN HARARE, NOVEMBER 15, 2011	CASE NO. LC/H/614/2010

In the Matter Between

RAKEY DENDE				     	APPELLANT

And

OLIVINE INDUSTRIES (PVT) LTD		RESPONDENT

Before The Honourable E. Makamure         : President

For The Appellant     		: Miss C. Maposa (Legal Practitioner)

For The Respondent  		: Mr T. Chiurayi (Legal Practitioner)

MAKAMURE E.,

The appellant employed by the respondent as a buyer.  He was found to have caused the purchase of some equipment without following the appropriate process.  In the result the equipment which was purchased cost the respondent substantially more than had the appropriate process been followed.  In the result he was dismissed from the respondent’s employ for:

“(a) Wilful refusal to obey a lawful instruction/order; and

(b) Gross incompetence or inefficiency in the performance of his work.”

He did not immediately appeal internally as required by the applicable code.  He appealed to the relevant National Employment Council (NEC).

The record shows that on 19 July 2010 the appellant refused to acknowledge the determination of his first appeal hearing.  However, as indicated earlier on the appellant proceeded to appeal to the NEC.  The NEC correctly ruled that the appellant had not exhausted the internal remedies.  The NEC directed that the internal procedures be complied with and that it be done within three (3) days.  This the appellant complied with.  He lodged an appeal to the Head of Business.  His sole ground of appeal before this authority was:

“UNFAIR DISMISSAL, UNPROCEDURAL.”

The Head of Business went on to consider the appeal and in the process also commented on the appellant’s failure to comply with the provisions of the applicable code.  The Head of Business then proceeded to consider the merits of the appeal which was before him.  He had this to say (page 7):

“Looking at the merits of this matter it is apparent that Mr Dende received an instruction which he ignored.  He wilfully circumvented purchasing procedures but gave no reasons whatsoever for such action.  A reading of the whole matter shows that Mr Dende never gave his work, set procedures and authority the gravity it deserves.  I therefore find that there are no prospects of success in this appeal.  Having found no reasons for the delay in the appeal - I dismiss this appeal for two reasons:

Lack of prospects of success on appeal and

Inordinate and unjustified delay in noting the appeal.”

The above shows that the Head of Business considered the merits of appeal and dismissed it.  What I however found not to be necessary was the second reason why the appeal was dismissed.  My view is that once the respondent had complied with the direction from the NEC, it became unnecessary to make a finding on what the respondent called “in ordinate delay.”  The NEC had specified the time frame within which the appeal was to be heard.  In my view therefore the question of the delay was inadvertently dealt with when the NEC gave the necessary directions.

The appellant was aggrieved by the decision made by the respondent’s Appellate Authority (The Head of Business) and appealed to this Court on the following grounds;

“The Head of Business erred by not finding that there was a misdirection as to the facts which led to misdirection as to the law.

As an appellate authority, the Head of Business grossly erred at law, such amounting to a misdirection in law by dismissing the appeal on alien grounds rather than the grounds of appeal raised by appellant, thus:

Lack of prospects of success on appeal and

Inordinate and misjustified (sic) delay in meeting the appeal.

The Head of Business erred and such amounts to misdirection at law in concentrating on non-appeal issues this procedural issues and the conduct of the Appellant during disciplinary proceedings.”

I have difficulty in comprehending what the appellant is trying to raise as grounds of appeal against the earlier determination.  The Head of Business was confronted with just one blanket ground of appeal – “unfair dismissal, unprocedural”.  There was no explanation as to what constituted the unfair dismissal.  There was no explanation as to what was done unprocedurally.  Under the circumstances, I am inclined to agree with the respondent’s submissions that the grounds of appeal before this Court are not meaningful.  It is important for the grounds of appeal to be clear and specific.  This enables the appellate authority to know what exactly has to be decided upon.

In the case of Tichawana Nyahuma v Barclays Bank (Private) Limited SC67/05 the appellant was aggrieved by some procedural irregularities against the respondent.  He articulated the alleged irregularities.  However, the Supreme Court found against him on the basis that the cited irregularities would not have vitiated his guilt.  My point is that in the Nyahuma case (above) the aggrieved employee articulated the irregularities in question.  In the present case however, the alleged irregularities were never clarified or explained.  In fact the Head of Business went out of his way to consider the procedure adopted by the appellant.  Given what the Head of Business was faced with, I find that the manner in which he dealt with the appeal placed before him was beyond reproach.  The grounds of appeal before this Court do not explain in plain language where the earlier tribunal erred.   I am therefore not able to find against that determination.  “An appeal Court does not interfere with the exercise of discretion by a lower Court unless it is shown that the discretion was improperly exercised” [See Passmore Malimanjani v Central Africa Building Society (CABS) SC 47/07].

I am unable to say that the earlier tribunal improperly exercised its discretion.

In the circumstances I find that there is no merit in the appeal.  Accordingly it is ordered that the appeal be and is hereby dismissed.

Matsikidze and Mucheche Legal Practitioners for the Appellant.

Coghlan Welsh and Guest Legal Practitioners for the Respondent.