Wise Owl Learning Centre v Fungai Molai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/327/2016
HARARE, 29 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/893/2014
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/327/2016

HARARE, 29 MARCH 2016 &			                   CASE NO LC/H/893/2014

13 MAY 2016

In the matter between

WISE OWL LEARNING CENTRE					APPELLANT

Versus

FUNGAI MOLAI								RESPONDENT

Before the Honourable E T Muchawa

For the Appellant	V C Nyandoro  (HR & Admin Officer)

For the Respondent     In default

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant is the respondent’s former employer. The respondent was initially employed on a contract without limit of time on 2 May 2012 as an infant teacher. It appears that sometime in January 2013, the respondent attempted to vary that contract to a three months fixed term contract. The respondent queried this in writing.

The respondent was dismissed on 13 May 2013 following disciplinary proceedings conducted in terms of the national Code of Conduct SI 15 of 2006. The charges were that the respondent had committed an act of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of her contract. The appeal authority upheld the verdict and penalty of dismissal.

Disgruntled, the respondent lodged a complaint with the National Employment Council for the Welfare and Educational Institutions (NECWEI) where the matter was referred to arbitration.

The arbitrator had to determine on the following:

Whether or not NECWEI had jurisdiction over the matter;

Whether or not there was an unfair labour practice.

Whether there was non-payment of terminal benefits and one month salary;

Whether there was unfair dismissal; and

Whether there was non-payment of overtime and transport allowance.

It was the finding of the arbitrator that the appellant rightfully falls under NECWEI jurisdiction and that therefore the arbitrator had jurisdiction over the matter.

The claim for overtime was dismissed for lack of evidence. The claim for underpayments was dismissed for lack of merit. The respondent was awarded a total amount of $1 059-38 as cash in lieu of leave, April 2013 salary and transport allowance.

As the respondent was found to have been dismissed using the wrong code, reinstatement was ordered, without loss of salary and benefits or, alternatively, damages in lieu of reinstatement.

These are the grounds of appeal before me:

The arbitrator erred at law by classifying the appellant under independent schools whereas in actual fact it is a Government aided school by registration.

The arbitrator erred at law in awarding cash-in-lieu of leave when the appellant used to pay the respondent full salary over the holidays in place of leave.

The arbitrator grossly erred at law by ruling that the appellant used the wrong code i.e. SI 15/2006 instead of the NEC code when in essence the respondent is not graded under the NEC CBA.

The arbitrator misdirected herself at law by awarding transport allowance when the respondent was provided with transport.

The respondent did not file any notice of response to the appeal, despite being served with same on 14 October 2014. Neither did she appear at the hearing on the date of set down.

The appellant’s Mr Nyandoro withdrew ground 1 of appeal on the basis of a precedent of this court.

In default of the respondent, and seeing that it is not the role of the court to formulate a defence for the respondent, who is in wilful default, it is ordered as follows:

The appeal succeeds. The arbitral award is set aside in its entirety save for the finding relating to the jurisdiction of the NECWEI.