Chinhoyi University of Technology v Ziyambe Dzidzai & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/293/14
HELD AT HARARE 6TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/293/14

HELD AT HARARE 6TH MARCH 2014 			CASE NO LC/H/929/13

& 23RD MAY 2014

In the matter between:-

CHINHOYI UNIVERSITY OF TECHNOLOGY			Applicant

And

ZIYAMBI DZIDZAI & 8 OTHERS				Respondent

Before The Honourable E Muchawa, Judge

For Appellant		S Mushonga (Legal Practitioner)

For Respondent		C Maposa (Legal Practitioner)

MUCHAWA,  J:

This is an application for interim relief in terms of Section 92 E of the Labour Act [Chapter 28:01].

Applicant is the former employer of the First to Ninth respondents.  Arbitrator F Mugabe handed down an award in favour of the respondents on the 5 November 2013 wherein he ordered their reinstatement without loss of salary and benefits with effect from 3 June 2013 or damages in lieu of reinstatement.  The order included reinstatement of each respondent’s accrued leave days as at 3 June 2013.

The arbitrator’s terms of reference were

To determine whether or not the claimants (respondents herein) were unfairly dismissed.

To determine whether or not they are entitled to be paid cash in lieu of leave days, and

To determine the appropriate remedy.

Applicant filed an appeal against the arbitral award on the 13 November

2013 wherein more than twenty paragraphs are grounds of appeal

Applicant seeks a suspension of the operation of the arbitral award pending the outcome of the appeal.

Both parties pointed me to the requirements to be considered before granting of a stay of execution pending appeal.  These are:

The prospects of success on appeal;

The harm that might occasion a party if execution is done; and

The balance of hardship for all parties concerned

(See Santam Ltd v Norman and Another 1996 (3) SA 502 (c) and ZIDECO (Pvt) Ltd  v Commissioner of Careers College (Pvt) Ltd 1991 (2) ZLR 61.

I proceed to deal with each of these requirements below

Prospects of success on appeal

Applicant submitted that he has every prospect of success on appeal in that the arbitrator grossly erred and misdirected himself in that he failed to make a determination regarding whether the fixed term contracts before him gave rise to a legitimate expectation to automatically gradual from being temporary teaching assistance (sic) to full time lectures on permanent basis when the fixed term contracts stated to the contrary.

It was submitted too that the arbitrator failed to interpret fixed term contracts and imported terms that were irrelevant.  The arbitrator is also alleged to have considered matters extraneous to his terms of reference and that the decision does not bring finality to the matter.

It is alleged that respondents had no basis for a legitimate expectation to be reemployed as their letters of appointment and conditions of service were clear and I was referred to the case of UZ-UCSF Collaborative Research Programme in Women’s Healthy v Shamuyarira 2010 (1) ZLR 127 (SC) where the renewals of a six month fixed contract were done from 2001 to November 2007 (i.e. over sixteen renewals spanning eight years) where it was found not to establish any legitimate expectation.

Respondents also referred to the case of UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira supra for the requirements to be met for someone to satisfy an unfair dismissal in terms of section 12 B (3) (b) of the labour Act [Chapter 28:01].  These are a legitimate expectation of being reengaged and that another person was engaged instead of the employee.

I agree that applicant’s chances of success on appeal to dispel the findings that other people had been reengaged are nil.  The question of legitimate expectation in the current circumstances is different.  This would have to be interpreted against the terms of the contract.  I find that the finding that the fixed term contracts had mutated into permanent contracts is a moot point, arguable on appeal.

This takes me to applicant’s grounds of appeal.  There are a total of twenty seven paragraphs wherein the court is expected to go on a fishing expedition and extract the points of law from factual points.  This is undesirable especially where a party is legally represented.

I believe a prima facie case has been established that is arguable on appeal.

Harm that may be occasioned if execution is done and balance of hardship on all parties

Respondent submitted that applicant has to establish irreparable harm and that the application is a mere attempt to frustrate a well reasoned judgment.

Applicant submitted that they are a public higher learning institution and any attachment in execution would affect the functioning of the same.

I believe this is a case where the interests of real and substantial justice would be best served by the granting of the application for stay of execution.  Execution after the appeal is heard would serve the interest of both parties well.

Consequently  I order as follows

The operation of the arbitral award given on 5 November 2013 be and is hereby suspended pending the resolution of the appeal filed of record by the applicant.

The costs of this application shall be in the cause.

Mushonga & Mutsvairo & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners