Azzizza Ally v Kays Travel & Tours

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/710/2014
HARARE, 09 AND 24 OCTOBER 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/710/2014

HARARE, 09 AND 24 OCTOBER 2014		           	       CASE NO. LC/H/372/14

In the matter between:-

AZZIZZA ALLY		 				Appellant

And

KAYS TRAVEL & TOURS					Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. R. Zinhema (Legal Practitioner)

For Respondent		Mr. T. Katsuro (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter, I upheld a point in limine raised by Respondent and indicated that reasons would follow.  These are they.

Appellant was employed by the Respondent.  On 25 April 2013 she was requested to relocate to Victoria Falls following the restructuring of the Company resulting in shifting of operations to Victoria Falls.  Appellant indicated that she was not able to do so for personal reasons.  The contract of employment was terminated.  Appellant approached the Ministry of Labour alleging unfair dismissal and underpayment of salaries.  The matter could not be resolved at conciliation and was subsequently referred to arbitration.  The arbitrator dismissed the matter in its entirety.

Aggrieved, the Appellant noted an appeal on 02 May 2014.  The grounds of appeal are

The honorable arbitrator erred by accepting summary dismissal.

The honourable arbitrator erred on a point of law by disregarding the fact that the Appellant was not dismissed in terms of an employment Code or the National Code.

The honourable Arbitrator erred in holding that the audi alteram partem principle was adhered to in the clear absence of any hearing process.

The honourable arbitrator grossly erred by upholding summary dismissal, which is unlawful in our law.

The Court a quo therefore was misdirected in finding that the appellant was not unfairly dismissed in the absence of any procedures, notice, hearing nor being heard in mitigation.

In response Respondent submitted that the arbitrator correctly found that there was no summary dismissal.  Respondent further submitted that the arbitrator correctly found that the audi alteram partem principle was adhered to.

At the hearing of the matter Respondent raised a point in limine that the appeal is fatally defective as it is pre-occupied with challenging procedural irregularities.  Respondent submitted that Appellant should have followed Rule 16 of this Court‘s rules SI 59/2006 and filed an application for review.

Appellant responded by stating that the appeal is in terms of Section 98 (10) of the Labour Act [Chapter 28:01].  It was further stated that the appeal is against a decision of the honourable arbitrator.  Appellant averred that the appeal is not challenging any procedural irregularities on the part of the Court a quo.

As submitted by the Respondent, an appeal stands or falls on the notice of appeal.  Whilst Appellant is alleging that she is not challenging procedural irregularities, the notice of appeal tells a different story.  The first and fourth grounds of appeal fault the arbitrator for accepting summary dismissal.

The dismissal process is an issue of procedure.  Appellant is therefore faulting the arbitrator for endorsing a procedurally flawed process.

The second ground of appeal raises the question of whether or not the Appellant was dismissed in terms of an employment code or the National Code.  Again that is a procedural issue.  The question of the observance of the audi alteram partem principle raised in the third ground of appeal is an issue of procedure.  The fifth ground of appeal states clearly that issues of procedures, notice, hearing or being heard in mitigation are in issue.  All these are procedural issues.

An appeal differs materially from a review.  The Rules of this Court provide for these procedures separately.  Rule 15 governs appeals whilst Rule 16 governs reviews.  Respondent referred the Court to the relevant case of Tselentis v Salisbury City Council 1965 (4) SA 61 and the Guide to Administration and Local Governmental Law in Zimbabwe (2013) by G. Feltoe.

I am satisfied that the Appellant has raised procedural issues on appeal.  The appeal is therefore improperly before this Court.  For the above reasons I dismissed the appeal.

Wherefore I order as follows,

The point in limine, being with merit, be and is hereby upheld.

The appeal be and is hereby dismissed for being improperly before the Court.

MADZIVANZIRA & ASSOCIATES, Appellant’s legal practitioner

MUNYARADZI GWISAI & PARTNERS, Respondent’s legal practitioners