Florance Munaki v C. Dauramanzi & St Ludger Primary School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/192/2020
HARARE, 20 JULY, 2020
CASE NO. LC/H/REV/90/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/192/2020

HARARE, 20 JULY, 2020		     	     CASE NO. LC/H/REV/90/19

AND 14 AUGUST, 2020

In the matter between:-

FLORANCE MUNAKI						Applicant

AND

C. DAURAMANZI							1st Respondent

ST LUDGER PRIMARY SCHOOL				2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:			Mr M. Mandazo (Trade Unionist)

For 1st Respondent:			No appearance

For 2nd Respondent:			Mr S. Magure (SDC member)

HOVE J:

This is an application for review.

The background is that the applicant alleges that she was employed by the 2nd respondent. The applicant’s services were terminated by the 2nd Respondent in December 2014 after the government had indicated that it was going to employ qualified ECD teachers in January of 2015. The applicant argued that she ought to have been retrenched but she was not. She argues that she was this fairly dismissed.

The 2nd Respondent on the other hand denied that the applicant was its employee. It averred that the applicant was employed by the parents of the preschool students and the federation of Kushanda preschools a non-governmental organization which was given premises by the 2nd Respondent. The only reason why the school receipted the money from ECD pupils was because the applicant and other ECD teachers were failing to see how they can share the proceeds from preschool fees. It is argued that the 2nd Respondent only involved itself when the other child minder who worked with the applicant together with the parents approached the school after they had a misunderstanding on how the applicant and her counterpart should share the money from parents in 2012 November. This was when the money was paid into school coffers to be shared equally between the two child minders but this is how the school only involved itself but that did not mean that the 2nd respondent employed the applicant. The 2nd respondent’s defense was therefore that it did not and never employed the applicant.

The Labour Officer who dealt with the matter concluded that there was no employment relationship between the applicant and the 2nd respondent. The Labour Officer was of the view that the applicant failed to prove the existence of the employment relationship.

The claim was dismissed on that basis.

The applicant was aggrieved and she filed this application for review. The grounds for review are as follows;

(1)	interest in the cause, bias malice or corruption on the part of the arbitrator or adjudicating authority concerned.

(2)	gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

It is trite law that an application will stand or fall on the basis of its founding papers. In casu, the applicant’s founding affidavit avers that she ought to have been retrenched but she was unfairly terminated as the 2nd respondent terminated her without following the provisions of section 12C of the Labour Act [Chapter 28:01] (the Act). The applicant further averred that she produced enough evidence to substantiate that the 2nd respondent was her employer. The Labour officer failed to find that there was an employment relationship.

These averments from paragraph 1 to paragraph 10 of the founding affidavit do not set out the basis for alleging interest in the cause, bias, malice or corruption. They also do not set out why it is now alleged that there was gross irregularity in the proceedings.

In the last paragraph before the prayer, that is, paragraph 11 of the founding affidavit a bold averment that;

“on 25 July 2019 1st Respondent issued a ruling that there was no employment relationship between me and 2nd Respondent which was grossly unreasonable and biased”.

How the ruling is grossly unreasonable and biased is not laid out in the founding papers. Its just a bold and unsubstantiated averment that the ruling was grossly unreasonable and biased.

Nothing in the founding affidavit speaks to gross unreasonableness nor bias. To succeed, the applicant ought to have laid out a case for bias or unreasonableness. The founding affidavit appears to be attacking the substantive correctness of the ruling and at the very end it makes a bold and unsubstantiated claim that the ruling was grossly unreasonable and there was bias.

Bias is not to be lightly inferred. It was incumbent on the applicant to show bias or gross unreasonableness. This she failed to do and by so doing, she failed to establish her grounds for review.

Her prayer is also incompetent in an application for review. In an application for review one sets out to correct the procedural irregularities and to be heard before an impartial arbitrator. For that reason, the prayer is often one to have the proceedings set aside and the matter remitted for a procedurally correct hearing or to be remitted to a different arbitrator.

In casu, the applicant’s prayer is that she be paid an amount of $20 868,00 as per her statement of claim before the arbitrator. Nothing in her founding papers speak to this award. It is not supported by her founding papers and is incompetent.

The application is therefore without merit and the following order is made:

Order

1.	The application is dismissed.

2.	There is no order as to costs.