Reason Manyanga v Professional Security (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/180/2021
HARARE, 11 OCTOBER 2021
22 OCTOBER 2021
CASE NO LC/H/193/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/180/2021

HARARE,  11 OCTOBER 2021&			  CASE NO LC/H/193/21

22 OCTOBER 2021

In the matter between:-

REASON MANYANGA				APPLICANT

And

PROFESSIONAL SECURITY (PVT)  LTD	RESPONDENT

Before the Honourable Kudya J

For the Applicant			In Person

For the Respondent			Chihlaba (Human Resources)

KUDYA, J:

Applicant is seeking to be condoned for his late noting of his appeal to the labour court.  The respondent employer is opposed to the grant of the condonation relief.

The background to the matter is that following a hearing into the employee’s matter at his workplace the appeals  officer directed him to appeal to the labour relation officer. For that the appeals officer cited SI 15/06.  It is only when the employee presented before the Labour Relation Officer that he was advised that he was in the wrong forum.  By that time he was out of time to appeal to the labour court hence the instant condonation application.

The employer concedes that indeed the appeals officer misdirected the employee by telling him to appeal to the Labour Relations Officer citing SI  15/06.  The concession by the employer puts to rest the question of wilfulness of the default.  Since the wilfulness argument has been put to rest what needs to be determined are the other rings of the condonation test See Jansen v Acavalas 1993 (1) ZLR 216 (5).

Merits

The employer reasons in opposition that the employee has no merited case on appeal so should be denied condonation relief.  Its argument is that employee was found guilty of misconduct acts based on evidence and per the Code of Conduct so to that extent has no plausible case on appeal.

On the other hand the employee persists with his condonation prayer and reasons that he has a merited case on appeal and for that he directs the court’s attention to his draft notice of appeal.  A reading of the appeal grounds spelt out in the draft intended for the labour officer speak simply to the issue that the employee was found guilty and dismissed based on insufficient evidence.  He demonstrates that such was so as evidenced by some of the charges he was acquitted of.

It need be noted that issues of sufficiency of evidence are factual considerations whose appellate intervention is only when the exercise of the discretion by the trier fact is adjudged grossly unreasonable See  Nyahondo v Hokonya 1997 (2) ZLR 475 (S). If it patently clear that until the matter is looked into holistically assessing the evidence given etc it would not be just and proper to refuse condonation without testing whether indeed the infraction was confirmed by sufficient evidence or not.

It is settled law that the condonation tenets are used cumulatively and not disjunctively.  Jansen (supra). From the facts at hand the concession by the employer on wilfulness of default and the nature of the arguments being advanced on appeal speaks to the need to let the employee take his matter up for determination with the appeal court. The court is satisfied that the cumulative effect of the condonation is tenets is such that the application should succeed.

IT IS ORDERED THAT

Application for condonation of late noting of appeal being merited it be and is hereby granted. Each party bears own costs.