Walter Mushore v Delta Beverages (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/307/24
HARARE 31 MAY, 2024
CASE NO. LC/H/308/24
AND 17 JULY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 31 MAY, 2024

AND 17 JULY, 2024

In the matter between: -

JUDGMENT NO. LC/H/307/24

CASE NO. LC/H/308/24

Walter Mushore	Applicant

Versus

Delta Beverages (Pvt) Ltd	Respondent

Before the Honourable L. Hove, Judge:

For Applicant  :	Mr. K. Tambanewenyu For Respondent :	Mr. P. Dube

This is an application for condonation of late noting of an appeal against the decision of the works council at the applicant’s workplace. The applicant also seeks leave to appeal against that decision of the works council to this Court.

Background

A brief look at the background of this matter will show that the applicant was charged with an act of misconduct, he was heard before his immediate superior and was convicted of misconduct, he appealed to the head of department. He exhausted the internal appeal procedures and finally appeared before the works council whose decision he now hopes to appeal against that is, if he manages to get past the hurdle of this application for condonation.

It is common cause that from the decision of the works council, his appeal lay to a Labour Officer. It is also common cause that the appeal to the Labour Officer ought to have been filed within 14 days of him becoming aware of the decision of the works council.

The decision of the works council was on 31 January 2024. He avers that he become aware of the decision on 12 February 2024. He was unable to get proper advice from his representatives and on 20 March 2024 he approached his current legal practitioners. It is then that he became aware that the appeal ought to have been filed within 14 days from the date of the determination. An approach to the Labour offices revealed that Labour officers do not entertain applications for condonation. That they are not authorized in terms of the Labour Act [chapter

28:01] (the Act) nor the relevant code of conduct to hear applications for condonation. He decided to approach this Court to seek condonation for his failure to approach a Labour Officer within the prescribed time and to seek that the Court should itself hear the appeal.

It is important to consider whether the Labour Court has authority to hear applications for condonation under these circumstances.

The applicant has stated that the appeal should have been noted before a Labour Officer. He does not say in terms of what he is now seeking to bring the appeal before the Labour Court.

In the case of Brake & Clutch v Nyama SC 42/2000 it was noted that;

“… reinforces what a number of other Supreme Court judgments have emphasized, namely that if there is a process to be followed it cannot just be ignored.”

The applicant in casu cannot just ignore the procedure that requires him to appeal to the Labour Officer and ask this Court to condone and hear his appeal.

The powers of the Labour Court are in terms of Section 89 of the Act which provides for its functions, powers and jurisdiction. The said section 89 provides that;

“1. The Labour Court shall exercise the following functions

Hearing and determining applications and appeals in terms of this Act, or any other enactment: and

Hearing and determining matters referred to it by the minister…, and ‘

Referring a dispute to a Labour Officer, …

Exercise the same powers of review as would be exercisable by the High Court…

Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

These powers of the Labour Court do not include the power to hear applications for condonation when a litigant has failed to act within the prescribed times in appealing to a Labour Officer from a decision made at a workplace.

After considering the above provisions of the Act, I am not persuaded that the matter is properly before me I have no jurisdiction to entertain this application. The application can therefore not succeed. The following order is accordingly made;

Order:

The application be and is hereby struck off the roll as being improperly before the Court.