Zachariah Sithole v Dharwizi Transport (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/25/2023
HARARE, 09 SEPTEMBER 2022
CASE NO. LC/H/260/22
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IN THE LABOUR COURT OF ZIMBAWE                      JUDGEMENT NO. LC/H/25/2023

HARARE, 09 SEPTEMBER 2022                                                    CASE NO. LC/H/260/22

AND 13 JANUARY 2023

In the matter between.

ZACHARIAH SITHOLE                                                                                  APPELLANT

AND

DHARWIZI TRANSPORT (PRIVATE) LTD                                                    RESPONDENT

Before the Honourable Hove J

For the Appellant                                              R. Masomere

For the Respondent                                          A. Mupondi

HOVE J:

This is an appeal against the decision of the Managing Director sitting as a final determining authority in terms of the Code of Conduct for the transport industry. The Managing Director found the appellant guilty of misconduct and dismissed him with effect from 3 March 2022.

Background

The Appellant, who was employed by the respondent as a driver, faced allegations of misconduct.

He was charged with the following acts of misconduct

Theft or fraud and or

Misuse of property for personal gain, alternatively

Negligent loss of property

The basis of the allegations were that in January 2022 appellant was tasked to ferry petrol from Beira to Harare. It was alleged that there was excessive product loss during the course of his tasked duties. Further, the Appellant is alleged to have known that there were no ZIMRA seals on the load that he was carrying but did not report the lack of seals. Further, it was alleged again that he failed to report the product loss.

Again, it was alleged that the Appellant made unauthorized multiple stops which is against the standing instructions. The employer further alleged gross negligence or dereliction of duty in that he failed to do truck dips on some of the metered deliveries. The failure to report the lack of Zimra seals was also against the standing procedures.

The Appellant was notified of the Disciplinary hearing on 14 February 2022. The notice is on pages 31 to 33 of the record.

The Disciplinary Committee which heard the matter failed to decide the matter, it deadlocked. The matter was then referred to the Managing Director, in terms of the governing code of conduct, as the final determining authority. The Appellant was found guilty and dismissed and this current appeal is against the decision of the Managing Director.

At the hearing of the appeal both parties raised preliminary issues.

The Appellant raised two preliminary points. The first of which was that the respondent’s representative was improperly before the court and should be denied the right of audience. The basis of the objection was that appellant’s representative was the chairman of the disciplinary committee which presided over his disciplinary hearing and she could not come to defend her own position. She descended into the arena and fought in the employer’s corner, it was alleged.

She therefore is not impartial. If this is the appellant’s concern, then he should have filed a review application and not an appeal. This is so because it is trite and needs no authority that in an appeal one challenges the substantive correctness of a decision. It is in a review application that one can challenge the process that led to the decision. Issues like bias and failure to be impartial challenge issues of procedure and therefore ought to be challenged in a review application.

In the Labour Court the Respondent’s representative is not required to be impartial. She can support her client. The case of Glademan Mbira vs Civil Service Commission SC 32/21 is distinguishable from this case. In that case the Honourable Judge was speaking to the impartiality required of a court, tribunal or umpire. This is made clear by the court when it stated that;

“Even where informality is permissible, the court or tribunal cannot give evidence for either of the parties”

In this case, Ms Mupondi is not a court or tribunal. She is the employer’s representative.

The issue is really that of, who is qualified to represent a party in the Labour court? In the Labour Court, a registered legal practitioner, an official or employee of a registered trade union or employer’s organization of which a party is a member or an official of a company can represent parties in the court. Ms Mupondi is an official of the Respondent and in terms of section 92 of the Labour Act [Chapter 28:01] (the Act) she has the requisite authority to appear on behalf of the Respondent company.

It is also trite that a party can chose a representative of its own choice. Subject only to the provisions of the Labour Act in Section 92. The court does not have the authority to bar anyone from representing a party unless it is not in terms of the afore said section.

I therefore have no authority to bar a company official from representing the company in proceedings before the Labour Court. The first Preliminary point does not have merit. It is the company that may injure its own cause before the Labour Court in the event that the Representative fails to act properly before the court by virtue of her interest in the matter.

The second preliminary point raised is again without merit. It was argued that the Managing Director ought to have called the appellant to hear him before deciding the matter. The governing code clearly states that the Managing Director may (my emphasis) interview the accused employee before making a decision. As conceded by the appellant’s representative, the use of the word may instead of shall is not peremptory. The Managing Director may or may not interview the accused employee. Either way, he commits no breach.

The parties to the Code of Conduct agreed to this position and it is not up to this court to rewrite the contract between the parties. There is no merit in both the two preliminary points raised by the appellant.

The employer also raised several preliminary points. One of the points, which I believe has the capacity of disposing of this matter is that the Appellant failed to comply with the rules and no application for condonation has been made to the court to enable him to be condoned and thus be properly before the court.

The notice of appeal was served outside the period stated in the rules. This is not denied by the appellant. It is in fact conceded. In the appellant’s heads of argument, the appellant sought to explain the failure to comply. The explanation should have been made as an application for condonation prior to the filing of this case. No application for condonation has been made. The heads of arguments were also filed outside the prescribed time.

The failure to comply with the rules, that is, Rule 26(1) (a) and (b) and also Rule 19(l)(d)(e) is fatal to the proceedings. The provisions of Rule 19 are also peremptory and noncompliance, if not condoned, renders the thing done a nullity.

There is therefore no compliance with the rules. The appeal is therefore rendered fatally defective by the appellant’s failure to comply with the rules. The provisions of Rule 26(1) are also peremptory and the same fate befalls the appeal.

The preliminary point is thus upheld. The appeal is rendered fatally defective by failure to comply with the provisions of rules 19 and 26 of the Labour Court Rules, 2017.

The appeal is thus improperly before the court and the following order is made.

Order

The appeal being improperly before the court, it be and is hereby struck off the Roll.