Unity Ndawi v Falcon Gold Zimbabwe Limited t/a Dalny Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/60/2013
HELD IN HARARE, FEBRUARY 21, 2013
CASE NO. LC/REV/H/132/2012
JUDGMENT NO. LC/H/60/2013
---------




IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/60/2013

HELD IN HARARE, FEBRUARY 21, 2013		CASE NO. LC/REV/H/132/2012

In the Matter Between

UNITY NDAWI				     	APPLICANT

And

FALCON GOLD ZIMBABWE			RESPONDENT

LIMITED t/a DALNY MINE

Before The Honourable E. Makamure         : President

For The Applicant     		: Ms R. Zvimba (Legal Practitioner)

For The Respondent  		: Mr R. Moyo (Legal Practitioner)

MAKAMURE E.,

This is an application for review

The matter was, however, set down for a hearing in terms of Rule 19(3) of the Rules of the Labour Court, Statutory Instrument 59/2006 (The Rules).

Rule 19(3) provides as follows:-

“Where heads of argument that are required to be lodged in terms of sub rule (1) or (2) are not lodged on behalf of the applicant, the appellant or respondent, as the case maybe, within the period or at the time specified in these provisions –

The registrar shall nevertheless set down the application, appeal or review for hearing in terms of rule 21, unless at any time before the matter is set down, the party who is not in default applies to a President of The Court in Chambers for the application, appeal or review to be dismissed or granted, as the case may be;”

The applicant filed an application for review.  The legal practitioner representing her did not file the heads of argument as required by the rules.  This matter was therefore properly set down as provided for in Rule 21 of The Rules.

The brief facts of this matter are that an audit was conducted at the workplace.  Some anomalies which touched on the applicant’s performance of duties were discovered by the auditors.  An explanation was required in order to clarify what appeared to be anomalies.  The applicant’s immediate superior asked the applicant to submit a report explaining the perceived anomalies.  The applicant refused to write the report.  She told her boss that she was going to consult her lawyer first.  Her refusal to submit the report resulted in disciplinary proceedings for ‘wilful disobedience of a lawful order’ being conducted against her.  She was dismissed as a result.

The applicant appealed internally in terms of the code of conduct.  She was not afforded a chance to be heard because she was not called to the hearing.  Thus her appeal was conducted without the benefit of her side of the story.  The applicable code is the Collective Bargaining Agreement: Mining Industry (Code of Conduct) Statutory Instrument 165/1992 (S.I. 165/02).  Section 3(c) of S.I. 165/92 provides as follows regarding the appeal procedure:

“(c)	the appeal shall be heard by the designated authority in the

presence of the employee who may be accompanied by his representative(s);” (emphasis added).

As indicated above, it is mandatory for the designated authority to hold the appeal in the presence of the employee.  The failure by the respondent to comply with provisions of the code causes a serious dent on its case.  This cannot be condoned.  In Madoda v Tanganda Tea Company Limited 1999(1) ZLR 374 (SC) the applicable code prescribed for the composition of the disciplinary committee.  It was held that failure to comply with the provisions of the code in the composition of that committee was an irregularity which vitiated those proceedings.  Employers are enjoined to comply with provisions of the relevant code of conduct.  Failure to adhere to such provisions makes the proceedings voidable at the instance of the employee.  In the present matter, this means that appropriately, the proceedings should be nullified and the matter be remitted back to employer for a proper hearing in compliance with the provisions of the code.  Employers must comply with provisions of the employment code.  The Courts have on countless times urged employers to comply with provisions of employment codes.  There is no point in having an employment code if the employers themselves do not adhere to the provisions of those codes.  Furthermore, when they do not do so, they run the risk of incurring avoidable costs and time wastage which are commodities to be jealously guarded.  Fortunately for the respondent in casu, the matter before the Court is one for application to dismiss the application for review for want of compliance with the Rules.

During the course of the hearing before this Court, it was conceded on behalf of the applicant that the order given was lawful.  The refusal goes to the root of the employment contract as envisaged in the case of Matereke v C.T. Bowring and Associates (Private) Limited 1987(1) ZLR 206 (S).  However, barring the one procedural irregularity by the respondent at appeal level, there is overwhelming evidence against the applicant.  What this means is that even if the procedural irregularity were corrected that would not cure the guilt of the applicant.

Having stated the above the application for dismissal succeeds.  The application for review fails in view of the applicant’s legal practitioner’s failure to file the Heads as required by the Rules. A legal practitioner owes his or her client a duty to exercise reasonable professional competence and diligence in the pursuit of his client’s instructions (See Mavheya Mutangi M. and Ors 1997(2) ZLR 462(H)).

In the circumstances it is ordered that the application for review be and is hereby dismissed with costs.

Mugiya and Macharaga Law Chambers, Legal Practitioners for the Applicant.

Gill, Godlonton and Gerrans, Legal Practitioners for the Respondent.