Zambuko Trust V Claudious Dzarova

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/143/13
HELD AT HARARE 28TH MARCH 2013
CASE NO
JUDGMENT NO LC/H/143/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/143/13

HELD AT HARARE 28TH MARCH 2013		     CASE NO LC/H/ 547/12

ZAMBUKO TRUST					Appellant

CLAUDIOUS DZAROVA				Respondent

Before The Honourable G Musariri, President

For Appellant		Ms R Gasa, Attorney

For Respondent		Ms S Chihombe, Unionist

MUSARIRI, G:

On 12th June 2012 the Honourable Y Malama made an arbitration award.  She ordered Appellant to reinstate Respondent in its employment or pay him damages in lieu of reinstatement.  Appellant then appealed to this Court.  Respondent opposed the appeal.

Appellant raised a point in limine.  This was to the effect that Respondent was barred on account of his failure to respond timeous to the notice of appeal.  Respondent acknowledged the late filing of his response.  However he argued that since he did file a belated response, his tardiness should not be used to non-suit him.  I agree with Respondent.  My position is informed by my interpretation of Rule 19 (1) of the Labour Court Rules S.I. 59/06.  The Rule sets a time limit for the filing of a response but only in the case of a Respondent

“represented by a legal practitioner.”  In this case Respondent was represented by a unionist.  Accordingly the time limit did not apply.  Appellant then argued that Respondent failed to appeal to the Chief Executive Officer (CEO) before referring the matter to their National Employment Council (NEC).

Questions as to which body to appeal to do not deal with the merits of a case.  Rather they deal with procedure.  In other words, if the Arbitrator wrongly took up the matter, that would be a procedural error which should be raised by way of an application for review. Appellant chose to proceed by way of an appeal.  Such is restricted to the four (4) corners of the record.  It focuses on the merits of the matter.

The dismissal letter dated 6th July 2010 is filed of record.  It shows that Appellant dismissed Respondent for misconduct as defined under paragraph 5 of Schedule 4 to the NEC’s Code of Conduct.  The paragraph defines the offence as,

“Unauthorised consumption of intoxicating liquor or habit forming drugs.”

The evidence relied on by Appellant was the conviction of Respondent by a criminal court for cultivation of dagga for which he was fined.  Clearly the consumption of dagga is different from its cultivation.   In other words a wrong charge was laid resulting in an incompetent verdict.  The Code deals with criminal convictions under paragraph 22 of the same Schedule 4.  A conviction resulting in imprisonment is what the code defines as an offence.  A Code  is meant to be “ definitive and exhaustive” as per Gubbay CJ, as he then was, in the matter of Delta v Gwashu SC 96/00 Accordingly the Arbitrator was correct

in finding, as she did, that Applicant was not properly charged in terms of the Code.

Wherefore it is ordered,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT