Bernard Mizeki College v Itai Kaombe & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/705/2016
HARARE, 11 OCTOBER 2016 &
CASE NO LC/H/APP/472/2016
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/705/2016

HARARE, 11 OCTOBER 2016 &				CASE NO LC/H/APP/472/2016

4 NOVEMBER 2016

In the matter between

BERNARD MIZEKI COLLEGE					APPLICANT

Versus

ITAI KAOMBE							1ST RESPONDENT

And

NATIONAL EMPLOYMENT COUNCIL FOR			2ND RESPONDENT

WELFARE AND EDUCATIONAL

INSTITUTIONS APPEALS COMMITTEE

Before the Honourable Muchawa J

For the Applicant	    C Warinda  (Deputy Head)

For the 1st Respondent    Ms S Chihombe  (Trade Unionist)

MUCHAWA J:

This is an application for interim relief made in terms of section 92 E (3) of the Labour Act. It is sought that execution of the decision of the National Employment Council for the Welfare and Educational Institutions (NECWEI) Appeals Committee be stayed pending the determination of an application for condonation of late noting of review.

The NECWEI Appeals Committee upheld the guilty verdict against the respondent but altered the penalty from a dismissal to a final written warning.

In a case under reference LC/H/860/2014, the applicant noted an appeal against the NECWEI Appeals Committee decision. That matter was dismissed in default of appearance by the applicant on 20 April 2016.

On 6 May 2016, the applicant proceeded to file an application for condonation of late noting of an application for review. That matter is still pending before this court.

It was submitted on behalf of the applicant that it stands to suffer irreparable harm if the first respondent is allowed to execute the award without the matter being heard on the merits by a competent court. It was contended that the applicant has prospects of success in the main matter and that the justice of the case demands that the interim relief be granted.

On the merits, it is argued that the NECWEI Appeals Committee acted improperly in substituting its own discretion for that of the employer without showing that the employer had acted unreasonably by imposing a dismissal penalty for the gross misconduct offence of wilful disobedience to a lawful order. Such offence is said to attract a dismissal penalty in the Code of Conduct.

It is argued that the NECWEI Appeals Committee overstepped its mandate as set out in section 4 of S I 102/2014 being the Collective Bargaining Agreement for the NECWEI.

The balance of convenience is alleged to favour the granting of the application for interim relief as the first respondent is alleged to be a person of no means who would be unable to reimburse the applicant if the interim relief is not granted and the court were to reverse the NECWEI Appeals Committee decision.

At the hearing of the application, the applicant raised the points in limine that the first respondent had failed to serve it with the notice of response and moved the court to proceed to issue a default judgment in terms of Rule 22.

The other point in limine raised in the applicant’s heads of argument is that it is not properly before the court as there is no legal entity by the name of “Bernard Mizeki College” and so the determination of the second respondent is a legal nullity. The prayer in this respect was that I proceed to suspend the order of the second respondent, which is alleged to be void ab initio until the application for condonation of late noting of review is disposed of. A document was tendered as exhibit “A” being the trust deed of Bernard Mizeki Schools Trust.

Ms Chiombe for the respondent argued on the preliminary points that the alleged trust deed is not signed nor registered with the relevant office and the bald assertion should not be accepted.

The court was urged not to proceed in terms of Rule 22 as the response of the first respondent is on record, though it was only served on the applicant today, an infraction for which apologies were tendered.

On the merits it is argued that there is no legal basis for the application as the appeal lodged by the applicant was dismissed in default and that this current application and that for condonation of late filing of an application for review are an abuse of this court.

Rule 22 of the Labour Court Rules is to be used where a party fails to file a notice of response. In casu such a notice of response was duly filed. There is no basis therefore on which to proceed as urged by the applicant.

Regarding the applicant’s point of law raised that it is not a legal persona, the evidence tendered is an unauthenticated document which is not signed nor officially registered in the relevant office. The applicant has not proved its allegation.

In any event, the order sought that the court should grant the interim relief sought where it is alleged there is no applicant before me, does not make sense.

I conclude therefore that the point on the locus standi of the applicant has not been seriously taken.

On the merits, I need be guided by section 92 E (3). It provides as follows:

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.” (my emphasis)

In casu there is no pending appeal. The appeal that was before the court was already dismissed. What is pending before the court is an application for condonation of late noting of review which was filed in response to the dismissal of the appeal.

Though the applicant has not filed its grounds of review to enable the court to assess its prospects of success, the founding affidavit seems to me to deal with the same grounds set out in the appeal.

The applicant is questioning the conclusions of the NECWEI Appeals Committee on the facts and the law and not the method of the hearing. That is a matter for appeal and not review. City of Harare v Zvobgo 2009 (1) ZLR 218 at 224.

I will demonstrate this. First it is alleged the Appeals Committee erred by ruling that the offence of wilful disobedience to a lawful order is not a serious offence.

Secondly it is argued that the Appeals Committee erred by setting aside the applicant’s decision to dismiss the second respondent in light of established legal principles.

The third allegation on the review is that the Appeals Committee acted outside its legal authority.

Clearly the applicant has no prospects of success on appeal as the implied grounds of review are appeal grounds. This appears to be the applicant’s attempt to resuscitate its dismissed appeal.

The balance of convenience favours the dismissal of the application for interim relief as the first respondent has already been made to unnecessarily wait for up to two years before execution of a judgment in his favour.

Any harm suffered by the applicant is of its own making. It had the option to appeal against the Appeals Committee decision. That appeal was dismissed for lack of prosecution and the proposed application for review and the condonation application are ill conceived.

Accordingly the application for stay of execution be and is hereby dismissed for lack of merit.