Christ Ministries High School v Edwin Chikuni & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/188/24
CASE NO LC/H/47/24
11 MARCH 2024
24 APRIL 2024
In the matter between:-
APPLICANT
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IN THE LABOUR COURT OF JUDGMENT NO LC/H/188/24

ZIMBABWE HARARE, 11 MARCH 2024 CASE NO LC/H/47/24

& 24 APRIL 2024

In the matter between:-

APPLICANT

CHRIST MINISTRIES HIGH SCHOOL

1st RESPONDENT

EDWIN CHIKUNI CLEOPATRA 2nd RESPONDENT

MHAIRWA (N.O)

Before the Honourable Kudya J
For the Applicant Mr T. Zungura (standing in for Nyasha Chiota (Legal Practitioner)

For the 1st Respondent B. Julajulah (Legal Practitioner)

For the 2nd Respondent No appearance

KUDYA, J:

On 12 March 2024 this court dismissed with costs an application for reinstatement of matter, which application had been filed by Christ Ministries High School against Edwin Chikuni its former employee and Cleopara Mhariwa the Designated Agent. Upon pronouncement of the decision the court advised the parties that they were free to request for full reasons for the decision if they needed them. The school has through a letter under the hand of its lawyers stamped 19 March 2023 requested for the reasons of the order of 12 March 2024. These are they

The background to the application for reinstatement is that the school filed with the court a notice of appeal against an order by the Designated Agent reinstating the employee. The employee had been disciplined by the employer following allegations of misconduct and penalised with dismissal. He appealed internally to the responsible authority in the person of one Makoni who ruled that employee had been improperly dismissed and had to be reinstated. The headmaster went on and also determined the same appeal and ruled that the employee had to be dismissed. Faced with the conflicting orders the employee approached the Designated Agent who ruled that the employee had been subjected to multiple proceedings against the spirit of section 124 of the Labour Act. The Designated Agent concluded that since the headmaster’s decision was made in the face of an extant decision by Makoni, the decision by Makoni had to prevail. This irked the school and caused it to file an appeal against the Designated Agent’s decision. Sadly the school failed to file timeously the proof of service of the notice of appeal and that resulted in the appeal being deemed dismissed. In a bid to cure the defect the school filed the instant application where it sought to have the appeal case reinstated.

It is settled that the application for reinstatement of a matter is resolved on the same principles as those that obtain for condonation See Jansen v Acavalos 1993(1) ZLR 216(S). The applicant states for the record that it failed to serve the employee for the reason that there were challenges with email services which necessitated physical service ultimately but by the time service was effected the applicant was already out of time. If the story by the applicant is anything to go by it can be accepted that communication challenges could indeed have militated against the timeous service of the process. This however is not the end of the matter.

It is settled that the condonation test is a cumulative one. The next test to be passed by the case is the merits test. In the case at hand it is common cause that the employee was subjected to 2 appeal tribunals within the respondent’s structures and it is clear that the alleged earlier erroneous decision was not vacated before the headmaster could give his dismissal verdict. This speaks clearly to a multiplicity of proceeding which See 124 Act frowns upon. It is clear from the above facts that the intended appeal falls on its face based on the above facts. It would thus be an exercise in futility to grant condonation for a case which is patently hopeless as the one which the employer wants to present before the court. As regards the other tenets it is clear that the balance of convenience favours the denial of reinstatement of a palpably porous appeal. There is no convenience for the court to grant such an ill-fated application.

It is granted that the matter is important to the school as it desires closure on the matter but it is clear that it is the very school which created problems for itself by having the 2 appeal tiers with flew in each other’s face and where one decision needed to be vacated first before jurisdiction could be assumed by the other body in the office of the headmaster. In a nutshell the court was satisfied that there was no good case for reinstatement. For the reasons discussed above it is on the strength of the above reasoning that the court concluded that the reinstatement application was not merited hence it had to be dismissed with costs.

**IT IS ORDERED THAT**

Application for reinstatement of matter being without merit it be and is hereby dismissed.

*DNM Attorneys, Applicant’s Legal Practitioners*

*Julajulah Law Chambers, 1st Respondent’s Legal Practitioners*


LC/H/2024
LC/H/
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