L. Nyangawo and 13 Others v Cutrag Processors (Pvt) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/210/2013
HARARE, 11 MARCH 2014
CASE NO.
JUDGMENT NO. LC/H/210/14
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/210/2013

HARARE, 11 MARCH 2014		    	       	           CASE NO. LC/H/198/2013  &

& 11 APRIL 2014						                 LC/H/145/2013

In the matter between:-

L. NYANGAWO AND 13 OTHERS				Applicants

And

CUTRAG PROCESSORS (PVT)	LIMITED			Respondent

Before The Honourable P Muzofa, Judge

(IN CHAMBERS)

MUZOFA J:

The Applicants apply for leave to appeal to the Supreme Court against the judgment of this Court of the 20th of December 2013.

The notice of appeal filed with the Supreme Court show one ground of appeal that the Court erred on a point of law holding that the parity principle is no longer applicable in labour matters.  The heads of argument filed for the applicant has an additional ground of appeal that;

“the Honourable Court grossly misdirected itself in its findings that nothing had been shown that the decision to dismiss only the Appellant was unreasonable, when in fact, the argument that the employer has not shown that the Appellant had participated more than the other employees who had been given final warnings show that the decision to dismiss Appellant only was grossly unreasonable.”

In an application such as this the Applicants have to show that there are prospects of success on appeal.  I will deal with the grounds of appeal in so far as they have prospects of success.

The applicability of the parity principle

This Court addressed this issue and referred to the relevant cases of Lancashire Steel Pvt Limited v Elijah Mandevana and 3 Others SC 29/95, Jiah and Others v Public Service Commission and Another 1999 (1) ZLR 17 SC and Mashonaland Turf Club v George Mutangadura SC 5/12.  In my view the position in the Mutangadura is that the focus should be on the misconduct whether it goes to the root of the employment contract.  Whether other employees who committed the same misdemeanor were dismissed or not becomes irrelevant.  The position of the law is clear.  I donot believe there are prospects of success based on this ground of appeal.

Whether the selective dismissal of employees was unreasonable.

This is now an established principle that the employer’s discretion can only be interfered with where it is shown that it exercised its discretion unreasonably.  It was submitted that the fact that there was selective dismissal is evidence of unreasonableness.  I donot agree with this submission.  In view of the finding above there is no unreasonableness.  Applicants having admitted that they were involved in the unlawful job action the Respondent was at liberty to decide on the penalty.  In view of the decision in Passmore Malimanjani v Central African Building Society SC 47/07, Speciss College v Maxwell Chiriseri and Others SC 2/13 and Tregers Plastics (Pvt) Ltd v Woodreck Sibanda and Another SC 22/12 I donot believe this ground of appeal has prospects of success.

Accordingly is ordered as follows;

The application for leave to appeal to the Supreme Court be and is hereby dismissed.

There shall be no order as to costs.