After hearing argument from counsel and following a
unanimous decision of the Court, the appeal was partially allowed with costs.
We further indicated that the reasons for judgment would follow in due course.
Those reasons are as follows.
Background
The respondent was employed by the appellant as its
Operations Manager. He was charged with several counts of unsatisfactory work
performance. He was subsequently dismissed after having been found guilty by
the appellant's Disciplinary Committee. His appeal to the internal Appeals
Committee was unsuccessful and the decision to dismiss him was upheld. He then
appealed against that decision to the Labour Court.
At the hearing of the appeal before the Labour Court, the
appellant herein raised two points in limine;
(i) The first being that the relief sought was not stated
in the notice of appeal; and
(ii) The second to the effect that the grounds of appeal
were too broad.
The respondent herein countered these objections by
applying to amend his notice of appeal so as to incorporate the relief sought.
The Labour Court reasoned that labour disputes should not
be decided on technicalities and that it was authorised to condone
non-compliance with its Rules. Since no prejudice was alleged or suffered by
the appellant, the court condoned the respondent's failure to comply with the
Rules and granted the application to amend the notice of appeal. As regards the
grounds of appeal, the court found that they were sufficiently clear and had
been understood by the appellant.
Consequently, the court dismissed both points in limine.
Turning to the merits, the court a quo assessed all of the
evidence before it, including the factual submissions contained in the
respondent's heads of argument. The court concluded that the five allegations
of unsatisfactory work performance had not been proved on a balance of
probabilities and that the Disciplinary Committee had erred in that regard.
Accordingly, the appeal was upheld with costs. It was ordered that the
respondent be reinstated or, in the event of reinstatement being untenable,
that he be paid damages in lieu of reinstatement, to be quantified if necessary
Grounds of
Appeal
The first ground of appeal before this Court is that “the
court a quo erred in law in failing to find that the purported appeal before it
was a nullity.” The remaining four grounds of appeal relate to the factual
findings of the court a quo and the consequent alleged misdirections in law.
It is not necessary to elaborate or delve into these
grounds, as our decision to allow the appeal turned exclusively on the first
ground of appeal.
The gist of the first ground of appeal, as appears from the
appellant's heads of argument, is that the notice of appeal before the Labour
Court did not contain a prayer and was therefore fatally defective. Since the
notice was a nullity, the court had no discretion to condone the defect and
proceed as it did to determine the matter on the amended notice of appeal. The
appeal should have been struck off the roll and the respondent, if he were so
inclined, could then have proceeded to resuscitate his appeal.
In his heads of argument, the respondent takes the position
that the court a quo correctly condoned the defectiveness of the respondent's
notice of appeal. The court had the requisite discretion to condone any
non-compliance with its Rules. In this regard, the appellant has not shown that
the court exercised this discretion improperly, and, therefore, there is no
basis for interfering with that condonation.
Disposition
In terms of section 49 of the
Labour Act [Chapter 28:01], in its relevant portions:
“(1) On an appeal before the
Labour Court in terms of section forty-seven
–
(a)…,.;
(b) The Labour Court shall, subject
to such procedures as may be prescribed, act in such manner and on such
principles as it deems best fitted to do
substantial justice to the parties, and to carry out the objects of this
Act.
(2)…,.”…,.
This statutory injunction, to do substantial justice
between the parties, is explicitly reiterated in Rule 26(a) of the Labour Court
Rules 2006, which allows the court to depart from the Rules as follows:
“At any time before, or
during, the hearing of a matter…, [to] direct, authorise or condone a departure
from any of these rules…, in the interests of justice, fairness and equity.”
Counsel for the respondent
submits that Rule 15(1)(a) of the Rules simply requires an appellant to, inter
alia, “complete in three copies a notice of appeal in Form LC 3.” There is
nothing in the Rules, so he argues, that expressly requires the relief sought
to be set out in the notice of appeal. He relies in this respect on the
decision of this Court in Standard Chartered Bank v Chinyemba 2004 (2) ZLR 197
(S), where it was held that a notice of appeal is not fatally and incurably
defective merely because it does not set out the relief that is sought.
Counsel for the appellant submits that the court a quo
accepted that the absence of any prayer in the notice of appeal before it
amounted to a defect that rendered the notice a nullity. Nevertheless, the
court proceeded to condone this fundamental irregularity. This constituted a
clear misdirection on its part. He also argues that Standard Chartered Bank v Chinyemba 2004 (2) ZLR
197 (S)
is distinguishable from the present in that the former did not specifically
address the question of compliance with the Labour Court Rules.
In Standard Chartered Bank v
Chinyemba 2004 (2) ZLR 197 (S), the Court was seized with the interpretation
and application of the Labour Relations (Settlement of Disputes) Regulations
1993 (since repealed and replaced by the Labour (Settlement of Disputes)
Regulations 2003). The appellant's contention was that the impugned notice did
not set out the relief sought and was therefore fatally defective. The Labour
Relations Tribunal dismissed this point in limine on the basis that in terms of
section 14 of the Regulations it was empowered to seek clarification in respect
of notices of appeal which were not clear. The Tribunal concluded that this
provision gave litigants an opportunity to cure defective notices of appeal at
the hearing of the matter and that, consequently, any defect in a notice of
appeal cannot be fatal. The Supreme Court agreed with the conclusion of the
Tribunal that the alleged defect in the notice of appeal was not fatal. It was
noted that the 1993 Regulations set out the procedures to be followed on
appeal. However, unlike Rule 29(1) of the Supreme Court Rules 1964, the
Regulations did not prescribe the contents of a notice of appeal. It was
accordingly held that, on a proper reading of the Regulations, the lawmaker
intended to allow for a certain amount of latitude in respect of proceedings
before the Tribunal.
In my view, the critical distinction, in casu, is that the
Labour Court Rules now in force are not silent as to the contents of a notice
of appeal. In addition to setting out the procedure to be followed on appeal, Rule
15 clearly prescribes the contents of a notice of appeal by specific reference
to “a notice of appeal in Form
LC3.”
I note that Rule 37, which governs the completion of forms
prescribed by the Rules, allows some measure of flexibility in that regard. It
provides that:
“(1) Subject to this rule, a
person required to complete any form prescribed in the Schedule may improvise
it by making such alterations to it as circumstances require.
(2) The Registrar may refuse to
accept any improvised form and require the party improvising it to submit
another form substantially compliant with that prescribed in the Schedule if
the Registrar is of the opinion that the improvised form is not so compliant.
(3) Where a dispute arises as to
the discretion exercised by the Registrar under subrule (2), the Registrar
shall refer the matter to a President in chambers who may thereupon –
(a) Direct the Registrar to accept the improvised form; or
(b) Direct the party who improvised the form to submit another
form substantially compliant with that prescribed in the Schedule; or
(c) Give such other directions as to the manner in which the
parties may proceed as the President thinks fit in the circumstances.
(4) All forms in terms of these
rules that are out of print or otherwise unavailable may be issued by the Registrar,
who may omit any explanatory notes or other irrelevant matter therefrom.”
It is trite that the Labour Court is entitled to dispense
equity in its duty to do substantial justice between the parties. However, it
cannot do so outside the confines of the law. Although section 49(1)(b) of the Labour Act [Chapter 28:01] allows for flexibility
and latitude in the exercise of the court's functions, it is still required to
act subject to such procedures as may be prescribed, i.e. in accordance with
the Labour Act and the Labour Court Rules.
Rule 15(1)(a) of the Labour Court Rules requires a
prospective appellant to complete a notice of appeal
in Form LC 3. This form prescribes the details of an appeal that must be set
out in the notice as follows:
(i) The determination and authority appealed against.
(ii) The date of issuance and service of the determination
appealed against.
(iii) A brief statement of the facts and grounds on which
the appeal is based. (If the space provided is inadequate, details of the
grounds of appeal may be attached in a separate document).
(iv) The form of the relief sought from the Labour Court
(as indicated in separate boxes to be ticked or as otherwise specified).
(v) Name and address of the appellant's legal practitioner
or representative.
(vi) List of witnesses to be summoned to attend the
hearing.
The notice of appeal, in the instant case, lists the name
of the appellant, the dates when the determination appealed against was issued
and served, and the names and addresses of the parties' respective legal
practitioners. There is no indication of the actual determination appealed
against or of the form of relief sought from the Labour Court. The grounds of
appeal are set out in a separate document attached to the notice. The three
grounds of appeal therein obliquely provide some indication of the
determination appealed against. However, the precise relief sought from the Labour
Court is not mentioned at all.
In my view, the omissions that I have identified in the
notice of appeal are critical and cannot be regarded as being mere
technicalities. Nor can it be said that the respondent has simply improvised
the notice by making appropriate alterations to the prescribed form. Taken in
its entirety, the notice is not “substantially compliant” with the form prescribed in the Schedule within
the contemplation of Rule 37. Consequently, the court a quo seriously
misdirected itself by condoning the respondent's flagrant disregard
of the Rules and granting the application to amend the notice of appeal before
it.
For the foregoing reasons, the appeal was partially allowed
and the following order was made:
1. The appeal is allowed with costs on the first ground of
appeal set out in the notice of appeal.
2. The judgment of the Labour Court is set aside and
substituted with the following:
“The appeal is struck off the Roll with costs.”
