Varichem v Johnson Muperekwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/422/2014
HARARE, 25 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		  JUDGMENT NO LC/H/422/2014

HARARE, 25 MARCH 2014 &  		                    CASE NO  LC/H/705/2013

4 JULY 2014

In the matter between

VARICHEM									APPELLANT

Versus

JOHNSON MUPEREKWA							RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Applicant	S.A. Tawona (Legal Practitioner)

For The Respondent	G. Pendeyi (Trade Unionist)

CHIVIZHE, J:

The matter was set down before me as an application for dismissal in terms of Rule 19(3)(a) of the Labour Court Rules, 2006.

When the parties appeared it was submitted by the respondent that the appellant having filed heads out of time the appellant was automatically barred and the court was urged to proceed to determine the matter on the merits.

The appellant through counsel however submitted an oral application for condonation.  It was submitted on its behalf that there was a reasonable explanation for the delay in filing heads.  The matter was being handled at appellant’s legal counsel firm by a Mrs Matibe who had abruptly left employment at the same time as her secretary.

In terms of Rule 19(1)(a) of the Labour Court Rules, 2006 the applicant was supposed to file its heads of argument within 14 days of receiving the notice of response.  The notice of response having been filed on the 20th of September 2013 heads of arguments were due on or before the 10TH of October 2013.

It is common cause the appellant’s heads of argument were only filed in March 2014.  The appellant was accordingly barred as provided under Rule 19(3)(b) of the Labour Court Rules.  The appellant was required to apply for upliftment of the bar before being heard.  Counsel was also required to apply for condonation on time.  Once a litigant fails however to file such condonation on time the litigant is also required to explain the delay in seeking condonation.

The court concluded that in the absence of a proper application for condonation of late filing of heads the application for condonation ought to be dismissed.  An order reflecting that finding was handed down on the 8th of April 2014.  The appellant being automatically barred the court proceeded to consider the matter on the merits.

On the merits the appellant had noted an appeal against a decision of the appeals board for the National Employment Council of the Chemicals and Fertilisers Manufacturing Industry which decision resulted in the setting aside of the dismissal penalty imposed by the employer.  The employer had consequently been directed to reinstate the respondent with effect from the date of unlawful dismissal.

The appellant noted an appeal on the basis that, inter alia the NEC Appeals Committee erred and misdirected itself by finding that the appellant had not given respondent a lawful order; that the board erred when it found that the Appeals Officer had failed to consider mitigatory factors; the board erred when it found that the disciplinary proceedings were flout with irregularities without specifying the actual irregularities; that the Board erred in drawing a distinction between the charge of insubordination and disobedience of a lawful order given by a person in authority whereas it is the same charge

An analysis of the facts and evidence in the record clearly established that the appeal was without merit.  The NEC Appeals Committee in its determination dealt to some length with almost all the issues raised in this appeal.  It was the finding of the Committee that the employer bungled the disciplinary procedures in that the charges could not be married to specific incidences; that the respondent’s  contract not having specific clauses on shift work nor overtime it was not proper for appellant to have charged the respondent with failing to execute contractual obligations which were otherwise non-existent; that on the charge of refusing to obey a lawful instruction (to work night shift) that the charge could not be sustained as the fact showed that the suspension letter was issued to respondent prematurely before the respondent had not even committed the misconduct.  Although the NEC Appeals Committee noted some procedural irregularities it was convinced that on the merits the appellant had failed to substantiate its allegations.  I was satisfied on the basis of the facts and evidence in the record that the findings by the NEC Appeals Board could not be faulted. The appeal clearly had no merit.

It is in the circumstances ordered as follows:

The appeal be and is hereby dismissed.

The decision by the NEC Appeals Committee dated 26 August, 2013 be and is hereby upheld.

Muza & Nyapadi Legal Practitioners, applicant’s legal practitioners