Tadzingwa Chikoore v Easwald Trading (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
Judgement No. LC/H/368/25
HARARE 30 JULY 2025
and 08 OCTOBER
Case No. LC/H/485/25
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IN THE LABOUR COURT OF ZIMBABWE	Judgement No. LC/H/368/25 HARARE	30 JULY 2025

and 08 OCTOBER	Case No. LC/H/ 485/25

TADZINGWA CHIKOORE	APPELLANT

AND

EASWALD TRADING (PVT) LTD	RESPONDENT

Before the Honourable Justices Musariri J and Makwande J.

N. Matongwana, for Appellant

N.C. Kennedy, for Respondent

This is an appeal against the determination by the Designated Agent dated 10 December 2024 wherein the Appellant’s application for quantification for damages in lieu of reinstatement was dismissed on the grounds that it was improperly before the Designated Agent.

FACTUAL BACKGROUND

Appellant, Tadzingwa Chikoore, was employed by the Respondent, Easwald Trading (Pvt) Ltd, as a shopkeeper on a permanent contract from April 2001 to February 2023. He was charged of “Unsatisfactory Work Performance” following a stocktake which discovered stock amounting to USD$ 3 997.20 missing in the shop.

The hearing conducted on 9 February 2023, found him guilty of unsatisfactorily performing his duties resulting in the loss of goods. This determination was communicated to him on 13 February 2023.

The Appellant aggrieved by the determination of the Disciplinary Authority duly filed an appeal with the Local Joint Committee for the National Employment Council for Commercial Sectors of Zimbabwe against the dismissal. The Local Joint Committee on 21 March 2024, upheld the appeal and made a finding that the Appellant was unlawfully dismissed. It ordered the reinstatement of Appellant without loss of salary and benefits from the date of unlawful dismissal. In the event that reinstatement was untenable, damages in lieu of reinstatement.

The Respondent dissatisfied with the finding of The Local Joint Committee filed a notice of appeal with the “Appeals Committee” for the National Employment Council for Commercial Sectors of Zimbabwe (NECCS). The Appeal is dated 19 April 2024 but was filed with NECCS on 22 April 2024. It is common cause that this Appeal was not served on the Appellant.

On 23 October 2024, the Appellant filed an application for “quantification of figures” before a Designated Agent Mr B. Hwachi. This application was hinged on the order by the Local Joint Committee particularly that if reinstatement failed, parties had to negotiate damages in lieu of reinstatement.

The Respondent challenged the application for quantification of damages on the grounds that the order by the Local Joint Committee had been set aside by operation of law as a result of the filing of the notice of appeal with NECCS. It termed the act by Appellant to seek quantification of damages to be an act of disillusionment in view of the Appeal.

On 10 December 2024, the Designated Agent Mr B. Hwachi, dismissed the Application for quantification of damages based on the finding that the matter was pending before the Negotiating Committee of the NECCS. The following findings were made by the Designated Agent;

that once the appeal was made on 22 April 2024, it suspended the decision by the Local Joint Committee;

that the fact that the Claimant (Appellant) was not served was neither here nor there (emphasis is mine) as the appeal was received and signed for at the NECCS;

that the Claimant (Appellant) had to wait until the determination by the Negotiating Committee.

that the Claim was improperly before it.

The Appellant in view of the above finding by the Designated Agent appealed to this court on the ground that the Designated Agent erred in determining that the Application for quantification was improperly before it.

ISSUES FOR DETERMINATION

The Appeal before this court is directed at the decision by the Designated Agent, in particular its determination that the Application was improperly before it as there was a pending Appeal.

The issues for determination are therefore as follows;

Whether there was an Appeal before the Negotiating Committee of NECCS?

Whether the failure to serve the Appellant with the Notice of Appeal affected the noting of the Appeal?

Whether the refusal by the Designated Agent to quantify the damages was justified in terms of the law?

APPLICANT’S CASE

The Applicant submits that there was no appeal filed with the Negotiating Council as the Appeal was made to a non-existent Committee. The Appeal was purportedly made to an “Appeals Committee” yet it had to be made to the Negotiating Committee.

The Appeal was made out of time. The Local Joint Committee’s decision was issued on 21 March 2024. The Respondent was duly served on 27 March 2024. In terms of Section 7 (3) of the CBA a party aggrieved had to do so within 14 days from the date of receipt of the decision. The Appeal was only filed on 22 April 2024.

That he was not served with the Appeal.

RESPONDENT’S CASE

The Respondent submits that the determination of the Designated Agent cannot be faulted as it is sound in terms of the law.

It submits that it duly filed an Appeal with the Negotiating Committee and same is still pending before the Committee.

It argues that the recourse sought by Appellant to seek for quantification of damages was improper. He ought to have pursued a mandamus to enforce that which is timeous to deal with the failure by the Negotiating Committee to make a decision within the prescribed period. To support this assertion, it relied on the dictum in Nyoni v Secretary for Public Service, Labour and Social Welfare & Anor 1977(2) ZLR and Vutete v Chairperson of the Appeals Committee (ZOU) & Anor HH257/18.

It further points out that the Appellant has been making follow ups on the pending Appeal with the Chief Designated Agent of NECCS, he cannot therefore turn around to say that the Appeal was made to a non-existent Committee. The reason why he has been making these follow ups is a clear indication that an Appeal had been duly filed. In the circumstances he cannot be allowed to approbate and reprobate a step in the proceedings. He can only do one, not both, in this regard reliance was placed in the case of S v Marutsi 1990 (2) ZLR and Trustees for the Time being of Cornerstone Trust & Ors v NMB SC97/21.

ANALYSIS

The material facts in this case are common cause, it is not disputed that there is a determination by the Local Joint Committee which reinstates the Appellant or failure of such, orders damages in lieu of reinstatement.

It is not in dispute that a purported appeal was filed by the Respondent with NECCS on 22 April 2024. The appeal was filed in compliance with the National Employment Council: Commercial Sectors’ Employment Code of Conduct and Grievance Procedures (“the Code of Conduct”) which provides as follows;

“7.3. An employer or employee who is aggrieved by the decision of the Local Joint Committee may:

Appeal to the Council through the Chief Designated Agent provided that such an appeal is lodged promptly and not later than fourteen (14) days from the date of receipt of the Local Joint Committee’s decision;

On receipt of an appeal, the Chief Designated Agent shall submit it to the Negotiating Committee of the Council which shall study representations from the parties in dispute and make a decision shall be given to both employer and employee and shall be final within Council.”

The Respondent in compliance with the above provision was obligated to Appeal to the Negotiating Committee of Council through the Chief Designated Agent, promptly

and not later than 14 days from the date of receipt of the Local Joint Committee’s decision.

The Appeal filed by the Respondent was placed before the Appeals Committee for the National Employment Council for Commercial Sectors of Zimbabwe. It should have been filed with the Negotiating Committee of Council instead. The Appeal had to be submitted through the Chief Designated Agent. The citation of the Appeal was therefore improper.

The Respondent received the determination by the Local Joint Committee on 27 March 2024. In exercising his right of appeal under Section 7.3.1 of the Code of Conduct, he had to lodge his appeal promptly or not later than 14 days from the date of receipt of the determination. The Respondent did not do that; he only filed his appeal on 19 April 2024.

A computation of the dies induciae will show that the Respondent had to file his Appeal on or before 16 April 2024 and not later than that. The wording in the Code of Conduct, not later is a clear and unambiguous mandatory obligation on an employee/employer who intends to appeal which commands strict and exact compliance. The Respondent had no exception and had an obligation to comply with the law. It could not file an Appeal out of time to the wrong forum, sit back and allege that its noting of the purported Appeal suspended the determination of the Local Joint Committee.

The failure by the Respondent to comply with the law rendered its Appeal a nullity without more ado. The fact that it was stamped by the NECCS without more does not condone the unlawful act by the Respondent. Hence, no valid application for appeal was made before the Negotiating Committee, as the appeal failed to comply with the prescribed timelines.

The conduct of the Respondent in respect of the Appeal leaves a lot to be desired. Having filed an Appeal out of time to the wrong forum, it chose not to serve the Appellant. The Appellant after he got wind of the Appeal made follow ups through his representative, Zimbabwe Industrial Revolution Workers Federation, on 2 July 2024 and later on 6 January 2025.

The Respondent now submits that since the Appellant made follow ups on the Appeal, he cannot approbate and reprobate at the same time by alleging that the Appeal was made before the wrong forum. The court takes issue with the condescending behaviour of the Respondent in that having improperly filed an Appeal it turns around and alleges that the Appellant is disillusioned. The conduct of the Appellant is that of a person who intends his matter to be heard to finality. On the other hand, the conduct of the Respondent is of a litigant who acts in bad faith, by filing an Appeal out of time to the wrong forum and doing nothing further about it. At no point did it make a follow up on the Appeal that it had filed.

The Respondent’s assertion that the remedy available to the Appellant was that of mandamus cannot stand. Its reliance on the cases of Nyoni v Secretary for Public Service, Labour and Social Welfare & Anor 1977(2) ZLR and Vutete v Chairperson of the Appeals Committee (ZOU) & Anor HH257/18 is misplaced. As indicated the Appeal was void ab initio, hence nothing could stand on it. This position has been aptly stated in McFoy v United Africa Co. Ltd [1961] 2 ALL ER 1169 at 1172l;

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad

…. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

[26] The essence of this finding by this court is that the Designated Agent erred by holding that the quantification of damages was improperly before it. Accordingly, this this appeal is upheld.

DISPOSITION

Wherefore it is and hereby ordered that:

The appeal is granted.

The determination issued by Designated Agent Mr B. Hwachi dated 10 December 2024 is hereby set aside.

The matter be and is hereby remitted back to the Designated Agent Mr B. Hwachi or any other available Designated Agent to determine on damages in lieu of reinstatement.

Respondent shall

J-U-D-G-E

B. MAKWANDE