IN
CHAMBERS
MAKARAU
JA:
This
is an application for leave to appeal against a decision of the
Labour Court, handed down on 27 October 2014 dismissing with costs,
an appeal to that court against a decision of the respondent
dismissing the appellant from employment. Leave to appeal was denied
by the Labour Court on the premise that the intended appeal had no
prospects of success.
The
facts of this application are common cause.
The
applicant was employed as a Senior Security Officer by the
respondent. Prior to that, he was employed by the Reserve Bank of
Zimbabwe which owed him money upon the termination of his employment.
It was a condition of the Reserve Bank that for applicant and others
similarly placed to access the money owed, they had to make an
application showing good cause. A death or illness in the family
could constitute such good cause.
In
an effort to access the owed amount, the applicant applied to the
Reserve Bank for the amount of US$3,500 attaching a burial order of
one Sidubi D Moyo, his grandfather. The burial order was fake.The
Reserve Bank reported the matter to the respondent, a sister company,
which, acting on the report, charged the applicant with an act of
misconduct. The applicant was convicted and thereafter dismissed from
employment. He appealed to the Labour Court which, as stated above,
dismissed the appeal.
It
is the applicant's intention to appeal against the decision of the
Labour Court.
I
cite here in full the grounds of the intended appeal. They are framed
as follows:
1.
The court a
quo
erred on a point of law by upholding the charge against the appellant
when such a charge was founded on the requirement by the Reserve Bank
that its former employee apply to it for payment of their arrear
salaries and terminal benefits, which condition is unlawful and
nullity. (sic).
2.
The penalty imposed on the appellant was a nullity in that there was
no compliance with the respondent's Code of Conduct requiring that
the Worker's Committee be consulted before such a penalty is
imposed.
3.
Alternatively, the court a
quo
erred on a point of law in that it was at large to interfere with the
penalty of dismissal because there was no compliance with the
respondent's Code of Conduct requiring that the Workers'
Committee be consulted before a penalty of dismissal is imposed.
4.
Alternatively, the court a
quo
misdirected itself on a point of law in refusing to interfere with
the penalty of dismissal upon a finding that the circumstances of the
matter merited a less severe penalty.
The
application for leave to appeal was opposed on the basis that the
intended grounds of appeal did not disclose any basis upon which the
refusal by the Labour Court to interfere with the penalty imposed by
the employer could be challenged or could be regarded as an error at
law. Accordingly, and in short, it was argued that the appeal had no
prospects of success.
At
the hearing of the application, without abandoning the other grounds,
counsel for the applicant restricted his argument to the last ground
of appeal as one that might enjoy some prospects of success on
appeal.
I
pause to note in passing that counsel for the applicant was wise in
not expending his energies on the first three grounds of the intended
appeal.
The
first ground is ill conceived as it seeks to challenge the validity
of an administrative policy by the Reserve Bank of Zimbabwe to limit
access to the arrear salaries and benefits of its former employees.
This issue, even though raised before the Labour Court was not an
issue properly before that court in appeal proceedings in which the
Reserve Bank of Zimbabwe not only lacked interest, but was not a
party.
The
second and third grounds of appeal are inter-related not only because
they are raised in the alternative but also because they seek to
raise the same issue. This is in relation to the irregularity
allegedly attendant upon the imposition of the penalty of dismissal.
It
was alleged by the applicant and denied by the respondent, that the
Worker's Committee was not consulted before the penalty of
dismissal was imposed.
For
the purposes of this application, it is not necessary that I
determine whether the Workers Committee was consulted or not before
the applicant was dismissed. This is so because not only was this an
issue that should have been properly brought in an application for
review before the Labour Court, but more importantly, it was never
brought to the attention of the court which as a result, did not make
any findings on it. Therefore, the court could not have erred as
alleged or at all in respect of an issue that was not before it and
one that it did not determine.
I
now turn to the argument on the fourth ground.
Accepting
as the correct position at law that an Appeal Court should be slow in
interfering with findings of fact and the exercise of discretionary
power by a lower court, counsel for the applicant submitted that this
position does not hold for the Labour Court when exercising its
appellate jurisdiction. This is so, he argued, because the Labour
Court is not an Appellate Court strictu
sensu
in that the enabling Act empowers it to hear matters brought before
it on appeal, de
novo.
It is therefore not confined to determining the matter on the basis
of the record before it but can lawfully act as a court of first
instance. Further, he submitted that whilst the Labour Court has
appellate jurisdiction, the Labour Act [Chapter
28.01],
that grants it this jurisdiction also enjoins the court to infuse the
equities of the dispute into the resolution of all matters brought
before it, appeals included.
The
argument by Advocate Phulu
has no prospects of success on appeal. This is so because the Supreme
Court, has in several cases pronounced itself on the law regarding
the exercise of appellate jurisdiction by the Labour Court in matters
relating to penalties. This it has done notwithstanding the
provisions of 2 of the Labour Act which the applicant sought to rely
on. (See Mashonaland
Turf Club v George Mutangadura
2012 (1) ZLR 183 (S); Innscor
Africa (Private) Limited v L Chimoto SC6/12;
Ajasi
Wala v Freda Rebecca Mine
SC56/2016 and Tendai
Tamanikwa and Another v Zimbabwe Manpower Development Fund and
Another
SC73/17.
BHUNU
JA writing for the court in Tamanikwa
and Another v Zimbabwe Manpower Development Fund
(supra)
had this to say:
“It
being common cause that the respondent committed a dismissible act of
misconduct, it was within the employer's discretion to terminate
his employment contract. Following the exercise of that discretion,
there was no proper or compelling reason advanced as to why the court
a
quo
or anyone else for that matter should interfere with the exercise of
that discretion. In the absence of any cogent reason for interfering
with the employer's discretion, the respondent's fate was
sealed.”
It
was not the applicant's argument that he will seek to have this
Court reconsider its decisions in the cases cited above.
In
an application for leave to appeal, the judge considering the
application acts as a gate-keeper. The role of the judge is to keep
out appeals with no prospects of success.
It
presents itself very clearly to me that an application that raises a
point that has already been determined by this Court and has been
determined against the very point that the applicant seeks to argue
on appeal, is one such application that should not be allowed to
pass, unless the applicant shows that it intends to request the
Supreme Court to reverse its earlier decision and has some prospects
of success in that regard. The applicant has not indicated an
intention to request this court to reverse itself.
On
the basis of the foregoing, this application cannot succeed.
Regarding
costs, I see no justification for these not to follow the cause.
In
the result, I make the following order:
The
application is dismissed with costs.
Calderwood,
Bryce Hendrie &Partners,
applicant's legal practitioners
Coghlan,
Welsh & Guest,
respondent's legal practitioners
