The background to the dispute is aptly summarized as
follows in the judgment of the court a quo;
“1.Appellant was
employed by respondent as a painter. He was dismissed from respondent's employ
on 10 November 2009 following a charge of absence from work for more than 7
consecutive days without a reasonable excuse. Appellant did not attend
the disciplinary hearing
despite being advised
of the date, time, and place
for the hearing.
2. Aggrieved,
appellant appealed to the respondent's General Manager who dismissed the
appeal. On 6 January 2010, appellant referred the matter to a Labour Officer
for conciliation. Respondent objected to the Labour Officer's involvement in
the dispute arguing that the latter had no jurisdiction to entertain the matter.
3. On 24 May
2010, the arbitrator awarded in favour of the appellant. Respondent filed an
application for review to reverse the referral as well as the arbitral award on
the basis that they were governed by a Code of Conduct and therefore the
conciliator had no jurisdiction. This Court set aside the arbitral award by
consent. Appellant then applied for condonation and the application was
granted. Appellant then filed this appeal.”
The grounds on which the appellant based his appeal to the
respondent's General Manager were as follows:
“11.1 The Area Manager went ahead to give a decision before
your office had responded to its call by the union for a Disciplinary Inquiry
as provided for under clause 15 of the N.R.Z. Code of Conduct.
11.2 The narration by the Area Manager that we were
afforded a chance to be heard does not sit well. The union had asked for an
inquiry not a hearing given the seriousness of the confusion by those handling
the matter.
11.3 The
allegations are pregnant with inconsistencies given that the Personnel Officer, Midlands
cleared Mr Gazi of any wrongdoing and the union is at a loss why a sudden turnaround Ref 350417 dated
24 April 2009.”
In spite of the fact that the decision of the disciplinary committee chaired by the
Area Manager was effectively a default one, the appellant, as is evident from the
above, took the course of appealing against that decision. The disciplinary
committee correctly observed, before imposing the penalty of dismissal, that
the appellant had deliberately spurned the proceedings and had accordingly
denied himself the chance to present a defence and proffer any arguments in
mitigation. The General Manager, however, disregarded this procedural faux pas, on the part of the appellant, and
proceeded to hear his appeal on the grounds
outlined above. He subsequently upheld the dismissal and stated that he 'found
no justification to alter the
punishment meted out for the following reasons…,.'
The appellant based his appeal to the Labour Court on the
following grounds:
1. That the General Manager erred in holding that the
appellant was absent without leave because he had not submitted periodic
medical booking off certificates as per the dictates of a weekly notice when
that is not a requirement in terms of the Labour Act or the Code thereby making
the requirement ultra vires the Labour Act.
2. That the General Manager
erred in upholding the conviction of the appellant
when there was evidence to
show that appellant was on sick leave as certified by a registered medical practitioner's sick leave booking
which amounts to a reasonable excuse at law.
3. That in the event that the verdict is upheld, the
penalty of dismissal was inappropriate and unwarranted in the circumstances.
The court a quo correctly observed
from the outset
(an observation not disputed
by the appellant) that the appellant's grounds of appeal constituted a complete
departure from the grounds that formed the basis of his appeal to the
respondent's General Manager. If the appellant's appeal to the General Manager
against what was effectively a default judgment against him is to be regarded
as a form of procedural transgression, it is evident that he compounded this
conduct by advancing completely new grounds of appeal before the Labour Court. He therefore effectively
enjoined that court to determine matters which:
(a) Had not been placed before the General Manager; and
(b) The respondent had not had the opportunity to consider
or make any pronouncement on.
The appellant defended this conduct on the premise that the
new grounds constituted points of law, which
can be raised at any stage in the proceedings before the courts.
The court a quo commented
on the respondent's response to this submission as follows:
“It was argued, strongly, by Mr Chikwaya, for the respondent, that the court
should disregard these 'new' grounds as not to do so would seriously
prejudice the respondent in particular and employers in
general in that employees would bring flimsy grounds before internal
hearings and then bring 'real' grounds and evidence before
an appellate court.”
The court a quo and
this Court, have been directed to the case of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H which set out the
following principle, which I find to be on all fours with the circumstances of
this case:
“If, therefore, the applicant was content to appeal against
the decision of the lower
body on three grounds
only, he cannot, in my view, bring on review other
grounds which he did not
appeal against to the internal appellate body. Even if he was entitled to do so, he would not in any case
succeed, because he did not make an issue of them at the hearing…,.
The applicant's failure
to raise the other grounds
must therefore be construed as waiver of those grounds
…,. and it is inappropriate for such person
to place before
the reviewing court grounds
which he did not challenge on appeal to the internal appeal panel. The
result is that I will examine only the three grounds on which the applicant appealed
to the disciplinary appeal panel of the respondent and not those grounds
which are raised for the first time in his founding affidavit. It is
appropriate, in my judgment, to take this approach because, where a person
has exhausted the domestic remedies available to him, which is what he
generally must do then on bringing the entire
proceedings on review he must
stick to the case which he placed before the domestic appellate body.”
The appellant, in his heads of argument, agrees with the
principle set out in Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H and
cites other authorities that support such a principle. He aptly cites the
following dictum from the case of Donnelly v Barclays National
Bank Ltd 1990 (1) SA 375 W…,;
“Secondly, it is clearly a wholly new line of defence now
being taken. It was not mentioned in the summary judgment proceedings; not in
the plea; it was never referred to in evidence or argument at trial. Its
mere novelty, of course, is no ground per se
for rejecting it. However, generally speaking, a court of appeal will
not entertain a point not raised in the court below and especially not one raised
on the pleadings in the court
below.”…,.
Counsel for the appellant seems to have latched onto the
apparent lifeline thrown to the appellant by this and other similar dicta (see
also Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR (1) (S); Goto v
Goto 2001 (2) ZLR 519 (S); and Austerlands (Pvt) Ltd v Traded
and Investment Bank Ltd & Others 2006 (1) ZLR 371
(S))
to
advance the following arguments in the appellant's heads of argument;
(i) That while this principle is correct in relation to
ordinary civil proceedings in the High Court and Supreme
Court, it is not compatible with the statutory provisions regulating the
exercise of power by the Labour Court to the effect that the latter court
should not take as strict a view of its jurisdiction.
(ii) That the Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H judgment was based on specific facts of that matter and therefore
did not set a general rule that no new matters could be raised which were not
raised before the internal tribunal; and
(iii) That, in
casu, the point of law in question,
that is the issue of weekly notice of an
employee on sick leave - was 'fully' covered in the pleadings.
The issues numbered
(ii) and (iii) were raised
in the court a quo, and,
relying on the principle set
down in Donnelly v Barclays
National Bank Ltd 1990 (1) SA 375 W,
the court stated as follows ;
“In principle, a court of appeal is disinclined to allow a
point to be raised for the first time before it. Generally, it will decline to do so unless;
(i) The point is covered by the pleadings;
(ii) There would be no unfairness to the other party;
(iii) The facts are common cause or well nigh
inconvertible; and
(iv) There is no
ground for thinking that other or further evidence would have been produced
that could have affected the point.”
The learned judge a quo
then considered each of these principles in the light of the evidence
before him and respectively determined thus in relation to the four principles;
(i) That the point of law at issue was not covered by the pleadings, since all that the
appellant did was write a letter to the District Civil Engineer (not the General
Manager) protesting his innocence.
(ii) That it was
unfair to the respondent to raise the point of law in question for the first
time on appeal in that the respondent 'argued its case on the basis that the appellant was absent from duty
without reasonable excuse.' Accordingly, the General Manager, who confirmed the
dismissal, was not confronted with the argument that the 'bedrock of its case
was being challenged.'
(iii) That the
facts of the matter were not common cause, as evidenced by the fact that there was a dispute as to whether
or not the weekly notice
and other related instruments therein,
formed part of the appellant's contract of employment; and, lastly
(iv) That had the
appellant appeared to argue his case before the disciplinary committee, he
could have led evidence regarding the Area Manager's mandate to issue a weekly
notice, the nature,
validity and effect
of such a notice vis a vis employees' rights
enshrined in section
14 of the Labour Act, and the parties' conduct regarding this notice prior to the
commission of the offence.
The court a quo then concluded as follows;
“In respect of point (ii) above, the appellant sought to
argue that the respondent's allusion to 'real' grounds being raised for the
first time on appeal, amounted to a concession that the new point had merit. I
am not persuaded by this contention. Far from making any concession, it is
evident from the context in which the remark was made, that all the respondent
meant was that the issue of the validity of the weekly notice was a 'real'
issue that should
appropriately have been brought before
the internal tribunals. This
would have afforded such tribunals the opportunity to properly address the
merits of the issue, rather than being 'ambushed with it' on appeal.”
I find the court's reasoning and conclusions, as
outlined above, to be eminently sound and therefore unassailable. 