Fairway Homes v Beauty Amidu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/263/16
HELD HARARE 23 MARCH 2016
CASE NO
JUDGMENT NO LC/H/263/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/263/16

HELD HARARE 23 MARCH 2016				CASE NO LC/H/APP/288/15

& 13 MAY 2016

In the matter between:

FAIRWAY HOMES				Applicant

And

BEAUTY AMIDU				Respondent

Before The Honourable B S Chidziva, Judge

For Applicant			Mr L F Nyamundanda (Legal Practitioner)

For Respondent		Mr S Dube (Trade Unionist)

CHIDZIVA, J:

This is an application for leave to appeal to the Supreme Court against the decision of this court that was handed down on 20 February 2015.  This court in its judgment dismissed the appeal and upheld the arbitral award by honourable arbitrator Nhimba.

The applicant’s grounds for this application are that it has prospects of success on appeal in that

The court erred and misdirected itself on a point of law in failing to appreciate that neither a labour arbitrator nor the Labour Court can condone non-compliance with the provisions of a registered collective bargaining agreement.

The court misdirected itself on a point of law in failing to realise that even if the dispute between the parties had been properly referred to the arbitrator the proper course to follow would have been to order that the respondent should remain on suspension without pay and benefits pending the rehearing of her case.

The court did not address the submission made on behalf of the applicant to the effect that the proper approach to be followed and which has been followed by this court previously in cases where the employee does not deny his guilty on the merits of the case, is to order a rehearing of the matter in a procedurally fair and correct manner with the employee in question remaining on suspension without pay and benefits pending the finalisation of the matter.

The respondent on the other hand told the court

Applicant has not given good grounds of appeal by stating that the respondent did not lodge an appeal within stipulated time frames yet the reasons for so doing are genuine.

The applicant from the onset knew very well that they had made a gross irregularity in conducting the disciplinary proceedings against the respondent as could be seen from their prayer that they wanted a re-hearing of the disciplinary proceedings.

The issue to be decided in this matter is whether applicant has prospects of success

on appeal or not.

It has been this court’s finding that

The applicant agreed with the arbitrator when it stated that a fresh disciplinary hearing could be conducted since there had been gross irregularity in conducting proceedings.

Until the date of appeal it was not even clear as to the misdeeds it is alleged that the respondent had committed.  The misconducst were not even put to her and she was not given the chance to respond to the allegations.

That being the case then there was no ground for this court to order that respondent

remains on suspension pending fresh disciplinary proceedings.

Furthermore the respondent explained the reason for delay in noting the appeal out of time.  The delay of two weeks was caused by the fact that respondent tried to reach an amicable ground with the applicant but to no avail.

In view of the circumstance this court finds that applicant has no prospects of success on appeal.

Accordingly it is ordered that

The application for leave to appeal be and is hereby dismissed with costs.

Danziger & Partners, applicant’s legal practitioners