Sheilla Lennard v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/443/14
HELD AT HARARE 6TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/443/14

HELD AT HARARE 6TH MAY 2014		         CASE NO  LC/H/766/13

& 18TH JULY 2014

In the matter between:-

SHEILLA LENNARD						Appellant

And

ZIMBABWE REVENUE AUTHORITY			Respondent

Before The Honourable R.F. Manyangadze, Judge

Appellant			In person

For Respondent		N Mbiriri (Legal Officer)

MANYANGADZE, J:

This is an appeal against the decision of the respondent’s Disciplinary and Grievance Committee (Disciplinary Committee) which found appellant guilty of misconduct and dismissed her from employment.

The Disciplinary Committee dismissed appellant from employment on

10 December 2010.

The appellant appealed to the Appeals Committee, in terms of the appellant company’s Code of Conduct (the Code).  The appeal, which was lodged on 10 January 2011, was out of time, in terms of the timelines stipulated by the Code.  On 15 March 2011, the Appeals Committee refused to hear appellant’s appeal, as it was out of time.

Appellant filed an appeal with this court, seeking condonation of the late noting of her appeal to the Appeals Committee.  This court, under Case No LC/CON/H/73/11, dismissed the appeal on the technicality that appellant had wrongly  sought relief against the decision of the Disciplinary Committee, and not the Appeals Committee.

The appellant rectified her papers, and again filed an application for condonation with this court under Case No LC/CON/16/13.

This application was granted on 15 September 2013.  The granting of the application must be understood in the context of applicant’s founding affidavit and draft order.   In the founding affidavit, applicant’s prayer is framed as;

“Wherefore I pray that this Honourable Court may grant the condonation and that I may file my appeal against the Appeals Committee’s decision.”

In the draft order, it is stated

“a)  The application for condonation be and is hereby granted.

The applicant be and is hereby allowed to file her appeal before the Zimbabwe Revenue Authority Appeals Committee within 5 working days of receipt of this determination.”

The decision by the Appeals Committee was, effectively, to refuse

appellant  condonation to file her appeal with that Committee out of time.  When the Labour Court granted condonation, it was within the context of the application and order sought,  thus effectively allowing applicant to note her appeal with the Appeals Committee out of time.

It is against this background that the respondent has raised a point in limine.  It is to the effect that appellant should not have filed her appeal, on the substantive issues that were before the Disciplinary Committee, with this court.  The respondent’s Appeals Committee had not dealt with the substantive appeal.  It had refused to entertain it on the basis that it was out of time.  The applications lodged by appellant in this court culminated in her getting the leeway to file her appeal, with the Appeals Committee, notwithstanding the delay and its refusal to entertain the appeal.  Instead, appellant has lodged her appeal, against the substantive decision of the Disciplinary Committee, with this Court.  The Appeals Committee has not yet pronounced itself on that decision.

The respondent referred the court to the Supreme Court case of Munyuki v City of Gweru 1998 (1) ZLR 182.

In that case, GUBBAY CJ cited with approval a passage from the judgment of HARMS J in Reckitt & Coleman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Ors (1991) 12 ILT 806 (LAC), at p 813 A – D:

“It is a principle of fairly general application that a party should utilise his domestic remedy and procedure before approaching a court.  There is no reason in principle why such a rule should not be applicable to proceedings before the industrial court.  That court has a duty to apply equitable principles in assessing what is fair between employer and employee.  If the employer and employee have entered into an agreement regulating disciplinary enquiries and providing for internal appeals, it would appear that under normal circumstances an employee who is to be disciplined has to attend and partake in those proceedings.”

In the circumstances, I  agree with the respondent’s submission that this appeal is not properly before this court.   Appellant should proceed to file her appeal with the Appeals Committee, so that it is disposed of on the merits.  This court cannot go into the merits of the Disciplinary Committee’s decision when the next level of  adjudication, the Appeals Committee, has not yet done so.

In the circumstances, it is ordered that

The Respondent’s point in limine be and is hereby upheld.

The appeal be and is hereby dismissed as it is not properly before this court.

Each party bears its own costs.