Murewa v National Social Security Authority (355 of 2023) [2023] ZWLC 13 (5 December 2023)

IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 OCTOBER 2023 05 DECEMBER 2023 JUDGMENT NO LC/H/355/2023 CASE NO LC/H/560/23 BRIAN MUREWA APPLICANT NATIONAL SOCIAL SECURITY AUTHORITY RESPONDENT Before the Honourable G. Musariri Judge: For Applicant - Mr B. Magogo, Advocate For Respondent - Mr N. Phiri, Attorney MUSARIRI, J: At the onset of oral argument in this Court respondent raised a point in limine which applicant opposed. The point is adumbrated in respondent’s opposing affidavit thus “5. I am advised by Respondent’s Legal Practitioners that in terms of Rule 20 of the Labour Court Rules, 2017, an application for review ought to be brought to this Honourable Court within twenty-one (21) days from the date the proceedings being reviewed were concluded. The Disciplinary Authority’s Determination was handed down on the 5th June 2023 yet the present application was filed on the 19th July of 2023. The Applicant is therefore out of time and I am advised that a process filed out of time cannot be entertained by this Honourable Court without condonation being applied for. It follows therefore that the Application is fatally defective for non-compliance with the rules.” Applicant countered in his heads of argument; “12.1.3 The determination was delivered on the 11th July 223 and thereafter an appeal was filed within the timelines in the Labour Court. 2 LC/H/355/2023 12.1.4 The Respondent seeks to ignore the fact that appeal was filed with the internal appeal structure and a communication was shared and delivered on the 11th July 2023.” Rule (1) of the Labour Court Rules S.I. 150/17 reads “A person wishing to seek review of proceedings referred to in terms of the Act shall, within twenty-one days from the date when proceedings are concluded, do the following Complete in three copies a n notice of review in Form LC 5;” Therefore, the key question becomes when were the (disciplinary) proceedings concluded? The parties reference different dates. Respondent refers to the 5th June 2023. The record shows that is the date when the Disciplinary Authority signed the determination. The determination concluded thus “I conclude that the appropriate and fitting penalty is that employee be dismissed from employment. I recommend accordingly.” Applicant refers to the 11th July 2023. However, during oral argument applicant shifted to rely on the termination letter dated 27th Jun e 2023. The relevant portion reads “Reference is made to your suspension from employment and suspension letter dated 16 February 2023, the disciplinary hearing and the Decision of the Disciplinary Authority dated 5 June 2023. (See attached decision for your reference). Please be advised that the Authority has endorsed the decision of the Disciplinary Authority and will therefore be implementing it. Resultantly your contract of employment is hereby terminated effective 5 June 2023.” It is apparent from the foregoing that the disciplinary proceedings were concluded by the termination letter dated 27th June 2023. The present application was filed on 19th July 2023. That was the 16th day after the conclusion of proceedings. Thus the application for review was filed timeously. Respondent argued that what is sought to be reviewed is the earlier decision of the Disciplinary Authority. Yet it is clear that the so called decision was but a recommendation. The substantive decision was embodied in the termination letter. This attempt to split the termination from the earlier recommendation amounts to splitting hairs which cannot be countenanced. The two were part of one process which was concluded by the termination. 3 LC/H/355/2023 Wherefore it is ordered that; The respondent’s point in limine be and is hereby dismissed; The Registrar of this Court shall re-set the matter for hearing on the earliest available date, and Costs shall be costs in the cause. MUSARIRI J-U-D-G-E IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 OCTOBER 2023 05 DECEMBER 2023 JUDGMENT NO LC/H/355/2023 CASE NO LC/H/560/23 IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 OCTOBER 2023 05 DECEMBER 2023 JUDGMENT NO LC/H/355/2023 CASE NO LC/H/560/23 BRIAN MUREWA APPLICANT BRIAN MUREWA APPLICANT NATIONAL SOCIAL SECURITY AUTHORITY RESPONDENT NATIONAL SOCIAL SECURITY AUTHORITY RESPONDENT Before the Honourable G. Musariri Judge: Before the Honourable G. Musariri Judge: For Applicant - Mr B. Magogo, Advocate For Applicant - Mr B. Magogo, Advocate For Respondent - Mr N. Phiri, Attorney For Respondent - Mr N. Phiri, Attorney MUSARIRI, J: MUSARIRI, J: At the onset of oral argument in this Court respondent raised a point in limine which applicant opposed. The point is adumbrated in respondent’s opposing affidavit thus “5. I am advised by Respondent’s Legal Practitioners that in terms of Rule 20 of the Labour Court Rules, 2017, an application for review ought to be brought to this Honourable Court within twenty-one (21) days from the date the proceedings being reviewed were concluded. The Disciplinary Authority’s Determination was handed down on the 5th June 2023 yet the present application was filed on the 19th July of 2023. The Applicant is therefore out of time and I am advised that a process filed out of time cannot be entertained by this Honourable Court without condonation being applied for. It follows therefore that the Application is fatally defective for non-compliance with the rules.” Applicant countered in his heads of argument; “12.1.3 The determination was delivered on the 11th July 223 and thereafter an appeal was filed within the timelines in the Labour Court. At the onset of oral argument in this Court respondent raised a point in limine which applicant opposed. The point is adumbrated in respondent’s opposing affidavit thus “5. I am advised by Respondent’s Legal Practitioners that in terms of Rule 20 of the Labour Court Rules, 2017, an application for review ought to be brought to this Honourable Court within twenty-one (21) days from the date the proceedings being reviewed were concluded. The Disciplinary Authority’s Determination was handed down on the 5th June 2023 yet the present application was filed on the 19th July of 2023. The Applicant is therefore out of time and I am advised that a process filed out of time cannot be entertained by this Honourable Court without condonation being applied for. It follows therefore that the Application is fatally defective for non-compliance with the rules.” Applicant countered in his heads of argument; “12.1.3 The determination was delivered on the 11th July 223 and thereafter an appeal was filed within the timelines in the Labour Court. 2 LC/H/355/2023 12.1.4 The Respondent seeks to ignore the fact that appeal was filed with the internal appeal structure and a communication was shared and delivered on the 11th July 2023.” Rule (1) of the Labour Court Rules S.I. 150/17 reads “A person wishing to seek review of proceedings referred to in terms of the Act shall, within twenty-one days from the date when proceedings are concluded, do the following Complete in three copies a n notice of review in Form LC 5;” Therefore, the key question becomes when were the (disciplinary) proceedings concluded? The parties reference different dates. Respondent refers to the 5th June 2023. The record shows that is the date when the Disciplinary Authority signed the determination. The determination concluded thus “I conclude that the appropriate and fitting penalty is that employee be dismissed from employment. I recommend accordingly.” Applicant refers to the 11th July 2023. However, during oral argument applicant shifted to rely on the termination letter dated 27th Jun e 2023. The relevant portion reads “Reference is made to your suspension from employment and suspension letter dated 16 February 2023, the disciplinary hearing and the Decision of the Disciplinary Authority dated 5 June 2023. (See attached decision for your reference). Please be advised that the Authority has endorsed the decision of the Disciplinary Authority and will therefore be implementing it. Resultantly your contract of employment is hereby terminated effective 5 June 2023.” It is apparent from the foregoing that the disciplinary proceedings were concluded by the termination letter dated 27th June 2023. The present application was filed on 19th July 2023. That was the 16th day after the conclusion of proceedings. Thus the application for review was filed timeously. Respondent argued that what is sought to be reviewed is the earlier decision of the Disciplinary Authority. Yet it is clear that the so called decision was but a recommendation. The substantive decision was embodied in the termination letter. This attempt to split the termination from the earlier recommendation amounts to splitting hairs which cannot be countenanced. The two were part of one process which was concluded by the termination. 3 LC/H/355/2023 Wherefore it is ordered that; The respondent’s point in limine be and is hereby dismissed; The Registrar of this Court shall re-set the matter for hearing on the earliest available date, and Costs shall be costs in the cause. MUSARIRI J-U-D-G-E