Samuel Nhanga v Triangle (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/MS/19/2013
HELD AT MASVINGO ON 22 NOVEMBER, 2013
CASE NO. LC/MS/CON/23/2010
and 4th DECEMBER, 2013
JUDGEMENT NO. LC/MS/19/2013
---------




IN THE LABOUR COURT OF ZIMBABWE    	       JUDGEMENT NO. LC/MS/19/2013

HELD AT MASVINGO ON 22 NOVEMBER, 2013      	CASE NO. LC/MS/CON/23/2010

and 4th DECEMBER, 2013

In the matter between:-

SAMUEL NHANGA					-	Applicant

And

TRIANGLE (PVT) LTD				-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Applicant		In  Person

For Respondent	-	Mr A. Rutanhire  (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an application for condonation for the late noting of an appeal against the determination of the Respondent’s final Appeal Authority. The application was opposed.  After hearing arguments and upon consideration of the record of proceedings I handed down an order dismissing the application.  I indicated that the reasons were to follow.  I set out hereunder my reasons for the order

The Labour Court Rules, Statutory Instrument 15/2006 in section 15 (1) provides that an appeal must be filed within twenty-one working days from the date when the Applicant received the determination from the employer.  In the event that the appeal is not filed within the prescribed twenty-one working days the person seeking to appeal must file an application for condonation of late noting of an appeal.

The relevant factors to be considered in the application of this nature are well-established.  The court takes into account such factors as the extent of the delay, the reasonableness of the explanation proffered for the delay and the prospects of success on appeal.  See for an example Cutnody Manikwa vs Circle Cement LC/MD/131/08.

The Applicant was, following a disciplinary hearing dismissed from employment with effect from 12th June 2009.

The Applicant being a self-actor indicated in his application that he had received the dismissal letter dated 6th April 2010 on the 29th April 2010.  Upon clarification with the Respondent’s official it became clear to the court that the decision referred to as dated 6th April 2010 emanated from the second but last appeal authority and therefore was not the final internal decision.  The letter from the Managing Director acting in his capacity as the final appeal authority (copy in the record) informing Applicant of the dismissal of his internal appeal is dated 9th June 2010.  An Applicant is normally required to disclose in an application of this nature the date on which he received the judgement in order for the court to determine the period of delay in noting an appeal.  The Applicant as a self-actor was confused as to when he received the final determination which is contained in the letter dated 9th June 2010.  For the purpose of this judgement it will be presumed he received the letter before the end of June 2010.  That date consequently will be relied on to determine the period of delay.

The Applicant tendered two reasons for the late noting of appeal.  Firstly that upon receipt of the final determination by the employer he had approached the  two relevant unions i.e. the General Secretary for Zimbabwe Sugar Milling Workers and the General Secretary of the National Employment Council for the Sugar Milling Industry.  It was his submission that the two authorities had taken up to three months in considering the matter and this had resulted in the delay in noting his appeal with the Labour Court.  The second reason proffered was that he had approached the Gweru Labour Court sometime in 2010 and had been advised by court officials that the court roaster was full and he would be advised in due course to approach the court for a date.

On the prospects of success on appeal the Applicant submitted that he had good prospects of success in the appeal.  He had been charged with the four acts of misconduct. His defence was a bald denial of liability to all the charges.  In oral submissions before the court he submitted that the Respondent wanted to dismiss him and framed charges against him.

The Respondent in its opposition papers raised a point in limine that because the application was not in the proper form i.e. in the form of a sworn affidavit by the Applicant and that the application had an incomplete prayer, the application ought to be dismissed for want of compliance with the Rules of the Court.

On the merits of the application the Respondent submitted that there was an inordinate delay and Applicant had failed to tender any reasonable explanation for the delay.  In regards the Applicant’s explanation that the delay was occasioned by the two unions where he referred his case it was Respondent’s submission that on the basis of two letters from both unions (copies supplied) the two unions, contrary to Applicant’s assertions, had not delayed the  Applicant  from  noting his appeal on time.  The letters one from the NEC for Sugar Milling Industry dated 6th July 2009 and the other from Zimbabwe Sugar Milling Industry Workers Union dated 27th July 2009 clearly showed that both bodies responded timeously upon being approached by the Applicant.   There was clearly no three months delay.

The Respondent also dismissed as baseless the claim by the Applicant that he had approached Gweru Labour Court in 2010 and had been told that the court roaster was full and that he would be advised in due course to approach the court again for purpose of filing his appeal.

On the prospects of success it was Respondent’s submission that on the basis of the minutes of the disciplinary  proceedings and other documentary evidence the Applicant was properly found guilty on all the four acts of misconduct.   He clearly had poor prospects of success on appeal.

Whilst it is accepted as contended by the Respondent that the application was not filed in proper form i.e. by way of a sworn affidavit by the Applicant and because of the incomplete prayer, the Labour Court in my view, has a discretion in this regard.  There is no specific requirement for a sworn affidavit in support of an application of this nature before the Labour Court.  In regards the incomplete prayer it was my considered view that the omission by the  Applicant who is a self-actor  was not calculated or intended to prejudice the other party.   No prejudice was going to be suffered by the Respondent.  For these reasons I dismissed the point in limine.

On the merits it was very clear to me that there had been an inordinate delay in filing of the appeal.  The period amounted to about three years calculated from the end of  2010 to 19 June 2013 when the Applicant filed his application for condonation with the Chief Registrar.

The explanation tendered for the delay in noting the appeal sounds unreasonable.  The submission in regards delay by the two unions was controverted by the Respondent through the two letters from the same unions to the Respondent which would tend to show that both bodies responded timeously  to Applicant’s request for  intervention. Even if it were to be accepted that they did delay by three months as suggested by Applicant, the Applicant still has not explained the rest of the period of delay of about two years and 9 months.  The Applicant suggested that the delay had also been at the Gweru Labour Court.  Although the Applicant claimed to have approached the court in 2010 there was no supporting information and no documents were tendered by the Applicant.  The explanation that he was turned away because of a full court roaster  sounds unreasonable.

On the prospects of success it is clear that the Applicant has poor to nil prospects of success on appeal.  He was facing four charges before the Respondent’s disciplinary authority i.e.:

Failing to complete given task in Field 601  and self-dismissal 03/06/09

Threatening and assaulting his supervisor for denial to grant him permission to go on leave.

Absenteeism  on Monday 8th June 2009

Failure to appear for a hearing.

The Applicant’s defence before the Labour Court appears to be at variance with the record of proceedings. The minutes of the disciplinary hearing clearly show that in respect of first charge of failing to complete task the Applicant admitted to the charge citing  the reason  that he was tired and he had told the supervisors that he was going home.   In regards the assault charge the Applicant initially denied the charge the later in course in the proceedings confirmed he had pushed the supervisor at Section Offices.  The minutes also show that Applicant said he was reacting to the Supervisor’s statement that he had worked for nothing since he had not finished his given task.  The Applicant also admitted to threatening his supervisor when he said words to the effect  “Unoda kurwa neni here?” (loosely translated ‘Do you want a fight with me?’)   and “Asi mune ngozi kumusha kwenyu?”  (loosely translated  ‘Is it that you have avenging spirits in your family)?’

In regards his absence from work without authority on 8th June 2009 Applicant admitted to the charge explaining that he could not get transport since  he had gone to the rural areas.  He however added a rider that he had in any event asked for 3 days off and had been given 2 days instead.  This led the committee to conclude that he had deliberately absented himself. The minutes also show that he admitted to having refused to attend the disciplinary hearing on the 10th June 2009 on the basis that he was tired.  The Applicant was on the basis of evidence found guilty on all the charges by the committee.

I was satisfied on the basis of the facts and evidence in the record that the Applicant was properly found guilty on the charges.  He clearly had nil prospects of success on appeal. It was on this basis I therefore dismissed the application for condonation of late noting of appeal.

Scanlen and Holderness – Respondents’ legal practitioners