Marange Resources (Pvt) Ltd v Alpha Madzima

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/816/2014
HARARE, 10 OCTOBER 2014
CASE NO. LC/H/816/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/816/2014

HARARE, 10 OCTOBER 2014	                         CASE NO. LC/APP/H/263/14

AND 19 DECEMBER 2014

In the matter between

MARANGE RESOURCES	(PVT) LTD				Applicant

And

ALPHA MADZIMA							Respondent

Before The Honourable P. Muzofa, Judge

For Applicant	-	S. Zvinavakobvu (Legal Practitioner)

For Respondent	-	O. Shava (Legal Practitioner)

MUZOFA, J:

An arbitral award was issued in favour of the respondent in the following terms.

“1.	That the dismissal verdict is hereby set aside and instead I impose a final written warning valid for 6 months and shall be effective from the date of this determination.

2.	That the claimant be reinstated without loss of pay and benefits with effect from the date of dismissal 6th February 2014.

3.	If reinstatement is no longer an option, damages in lieu of reinstatement shall be paid over and above the back pay Parties may approach the arbitrator for quantification of such damages.

4.	This order shall be implemented within fourteen (14) working days from the date of receipt of this award.”

The applicant having filed an appeal against the award has approached this court for stay of execution of the said award pursuant to the provisions of section 92E (3) of the Labour Act [Chapter 28:01].  The respondent also filed a cross appeal.  The respondent opposed the application on the basis that the application is prematurely before the court since the award was incapable of execution.

The Respondent’s submission being based on the premises that the damages were not quantified and applicant had not communicated whether it will reinstate the applicant.  Clearly there is no meaningful opposition by the Respondent.  The applicant has taken a precautionary measure to guard against being on the wrong side of the law.  This is in light of section 92E (2) which provide that an appeal does not suspend the decision appealed against.  In casu despite the fact that the applicant noted an appeal the decision remained operational.  To that extent the applicant has the right to apply for stay of execution whether or not the order is capable of execution.  The respondent’s submission is untenable, the order of reinstatement is capable of being actioned by applicant.  In the event that the applicant has failed to reinstate it would be open for the respondent to apply for the quantification of damages.  The application for stay of execution is meant    to temporarily suspend all that.

The requirements for a party to succeed in an application such as this it being an interim application are well set out in the case of Zimbabwe Open University v Magaramombe & Another SC 20/12.  These include whether there are prospects of success on appeal, the balance of convenience and whether any of the parties would suffer irreparable harm.

The main issue for determination on appeal is whether the arbitrator erred by substituting the employer’s penalty of dismissal with a final warning.  The position of the law is settled on this issue.  It is all about the employer’s discretion.  Once the employer is of the view that a misnomer goes to the root of the employment contract it is entitled to dismiss see Innscor v Chimoto SC 06/12.  I believe applicant has prospects of success on appeal

The balance of convenience favours both the applicant and respondent in that the application is only but an interim order.  It does not dispose of the matter completely.  There is no prejudice on both parties as the appeal would determine the outcome that would impact on the rights of the parties in so far as the award is concerned.  Where it has not been shown that the granting of such an application can lead to prejudice courts are inclined to grant such applications.

Accordingly the following order is made.

The application for stay of execution pending appeal be and is hereby granted.

Each party to bear its own costs.

MUTAMANGIRA & ASSOCIATES, Appellant’s legal practitioners

MBIDZO MUCHADEHAMA & MAKONI, Respondent’s legal practitioners