Dohne Construction Company v Luckmore Siyawadya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/717/2016
HARARE, 30 SEPTEMBER 2016 &
18 NOVEMBER 2016
CASE NO LC/H/APP/913/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/717/2016

HARARE, 30 SEPTEMBER 2016 &			CASE NO LC/H/APP/913/2014

18 NOVEMBER 2016

In the matter between

DOHNE CONSTRUCTION COMPANY				      APPLICANT

Versus

LUCKMORE SIYAWADYA					    RESPONDENT

Before the Honourable Maxwell J

For the Applicant	Ms S Nyagura (Legal Practitioner)

For the Respondent    Ms V Kufaruwenga (Legal Practitioner)

MAXWELL J:

This is an application for leave to appeal against a decision of this court issued on 10 October 2014. The respondent was employed by the applicant as a site quantity surveyor on 17 February 2012. It is alleged that he stopped going to work in March 2013 only to report for work in June 2013 demanding his salary. The appellant contended that the respondent had repudiated his contract by failing to report for work. On 6 June 2013 the respondent’s contract of employment was terminated.

A dispute of non-payment of wages and unfair dismissal was referred to arbitration. The arbitrator found in favour of the respondent. The applicant appealed to this court, but the appeal was dismissed for lack of merit. The applicant thereafter filed the present application.

An application of this nature is governed by section 92 F of the Labour Act [Chapter 28:01] as well as Rule 36 of S I 59/2006. The intended appeal must be on a question of law. The application for leave to appeal must be made within thirty days from the date of the decision sought to be appealed against and there must be prospects of success on appeal.

The applicant has placed in issue this court’s decision that the respondent had not repudiated his contract and that his dismissal ought to have been done in terms of section 12B of the Labour Act [Chapter 28:01]. Reasons for this court’s decision were given. Reference was made to a Supreme Court decision. The applicant has not demonstrated that this court’s reliance on the Supreme Court’s decision was misplaced.

The applicant has also placed in issue this court’s refusal to interfere with the arbitrator’s discretion to order reinstatement without loss of salary and benefits. However this issue was not addressed in the heads of argument, nor in oral submissions. I will therefore consider it abandoned.

I am not persuaded that there is a basis for granting leave to appeal to the Supreme Court in this case. The respondent prayed for the dismissal of the application with costs on a High Court scale. There was no explanation of why reference is made to the High Court. Rule 32 of S I 59/2006 deals with the costs that this court can order. Accordingly the following order is appropriate.

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

Matsikidze & Mucheche, applicant’s legal practitioners

Dzimba Jaravaza & Associates, respondent’s legal practitioners