Seven Taderera v Dharwizi Transport (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/608/2016
HARARE, 6 JUNE 2016 &
CASE NO LC/H/REV/25/2016
7 OCTOBER 2015
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/608/2016

HARARE, 6 JUNE 2016 &				      CASE NO LC/H/REV/25/2016

7 OCTOBER 2015

In the matter between

SEVEN TADERERA							APPLICANT

Versus

DHARWIZI TRANSPORT (PVT) LTD					RESPONDENT

Before the Honourable B S Chidziva J

For the Applicant	C Chigwada  (Trade Unionist)

For the Respondent	H Mutasa (Legal Practitioner)

CHIDZIVA J:

This is an application for review of the disciplinary proceedings by the respondent which culminated in the applicant’s dismissal from employment for gross negligence.

The brief history of this matter is that the applicant was charged with gross negligence and proven negligence resulting in fuel theft from side tanks on H 89. It was alleged that on 6 November the applicant whilst at (NOIC) National Oil Company of Zimbabwe had fuel stolen out of his side tanks. Extra fuel had to be sent out to him so that H 89 could load. There was no breaking of the locks or any indication of theft yet there was no fuel in the side tanks and the metre was reading empty. The applicant appeared before the disciplinary authority on 1 December 2015.

On 28 January 2016 the applicant appealed against the decision of the disciplinary authority. The appeals authority upheld the decision of the disciplinary committee.

The applicant has now filed an application for review and the grounds of review are as follows:

The record of proceedings of 1 December 2015 is not a carried record of proceedings as most of the applicant’s vital submissions are not captured therein.

There are two sets of determination of this matter i.e.

One dated 21 December 2015 by B Chigumbura, Laonios Dick and the chairman.

Another determination dated 15 January 2016 signed by Shannon, Kingslet Lang and Tendai Mapiye.

Of all the aforestated determinations none of them pronounced a guilty verdict and penalty thereof. Therefore the dismissal letter by Mr Munyama was not a decision of the disciplinary committee in terms of section A. 8 of SI 67 of 2012 to an extent that that decision should be set aside as it stands illegally supported.

The aforestated anomaly eventually misdirected even the present unnamed appeals authority which to date remains unknown as to whether he or she is the correct person.

The aforesaid procedural irregularities were complained of since the onset of this matter (thus the improper suspending, the improper composition of hearing committee of 16 November 2015, the absents under review and that there were multiple proceedings over the same issue thus criminal and labour proceedings) to the extent that both procedures are to date un-concluded yet the applicant unlawfully dismissed.

To this end the unlawful decision to dismiss should be set aside and the applicant be accorded a procedurally correct hearing as there stands high prospects of success if given the opportunity since there was no loss of 200 litres as the alleged diesel in question was allocated some days earlier.

The fuel tank lock was malfunctioning at which point, the applicants had earlier on purported to his immediate superior for replacement but was not addressed to an extent that criminals would find it easy to open the tank and siphon as what resultantly happened.

It is on these grounds that the applicant prayed that he be accorded fresh hearing in a procedurally correct manner “being free and fair with no loss of salaries and benefits”.

The respondent in response raised points in limine to the effect that:

If the applicant is seeking to raise issues arising from proceedings that were concluded on 17 December 2015, the applicant’s application is inherently defective for want of compliance with Rule 16 (1) of the Labour Court Rules.

Grounds of Review 1, 2(a), 3, 5, 6 and 7 do not constitute proper grounds of review because these do not in any way attempt to challenge any procedural issues connected with the hearing in question. On that basis alone, these purported grounds of review ought to be struck out.

The court did not proceed to deal with the merits of the case. It reserved judgment on the points in limine and this is the matter I am dealing with.

The questions to be answered in this matter are whether:

The application is out of time.

The review grounds 1, 2(a), 3, 5, 6 and 7 do not constitute proper grounds of review.

The applicant filed the grounds of appeal on 17 March 2016. The record of proceedings has two determinations i.e. one for 15 January 2016 and 21 December 2015.

Rule 16 (1) of the Labour Court Rules states that an application for review ought to be filed “within (21) twenty-one days from the date when the proceedings are concluded.”

The application for review was therefore filed out of time for both determinations.

Ground 5 is vague and embarrassing as it does not clearly challenge the procedural irregularities. The same applies to grounds number 6, 7 and 3. The grounds of review do not clearly state the procedural irregularity being complained about.

In view of this therefore this court orders as follows:

The point in limine be and is hereby upheld.

The applicant shall bear the costs.

Gill, Godlonton’s Gerrans, respondent’s legal practitioners