Dorman Mabara v Zimbabwe Electricity Transmission and Distribution Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/227/14
HELD AT HARARE ON 24th MARCH, 2014
CASE NO. LC/H/532/12
AND 11th APRIL, 2014
JUDGMENT NO. LC/H/227/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/227/14

HELD AT HARARE ON 24th MARCH, 2014   CASE NO. LC/H/532/12

AND 11th APRIL, 2014

In the matter between:-

DORMAN MABARA 							Applicant

And

ZIMBABWE ELECTRICITY TRANSMISSION

AND DISTRIBUTION COMPANY (PVT) LTD.		Respondent

Before the Honourable G. Mhuri, Judge

For Applicant	: Mr. E. Mangezi(Legal Practitioner)

For Respondent: Mr. I. Chisango (Legal Practitioner)

MHURI J.:

On the 25th October 2013 this Court delivered a judgment allowing an appeal against an arbitral award which was in favour of the applicant.

Aggrieved by the judgment, Applicant then filed this application for leave to appeal to the Supreme Court.  In terms of Section 92F (1) of the Labour Act [Chapter 28:01] appeals to the Supreme Court against a Labour Court decision shall be premised on a question of law.

When considering applications such as this one, the Court does not only look at whether the appeal is premised on a question of law but should also go further and consider whether there are prospects of success on appeal.

In casu, whilst the appeal raises questions of law, are there prospects of success.  As per paragraph 12 of Applicant’s Heads of Argument, is it apparent that a different court sitting elsewhere but seized with the same matter may easily arrive at a different conclusion altogether?

The answer in my view is in the negative.

Firstly, the law is quite clear that it is a gross misdirection on the part of the Court not to order an alternative of payment of damages when ordering reinstatement.

See 	ZIMNAT LIFE ASSURANCE LTD V GEORGE DIKINYA SC 30/2010.

It is a trite position of the law that an employer should not be forced to keep an employee with whom the contractual relationship is no longer tenable.

See	NICHOLAS HAMA V NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664.

OLIVINE INDUSTRIES PRIVATE LIMITED V GWEKWERERE SC 9/04.

Secondly, as submitted by the Respondent correctly in my view, the Court did not go beyond the four corners of the record.  It considered the ground that on the evidence placed before him the arbitrator grossly misdirected himself and came to an outrageous decision based on the belief that Applicant had been on sick leave in South Africa.  The evidence placed before the Arbitrator clearly showed that these were medical reports by service providers based in Zimbabwe.

It was therefore within its powers for the Court to delve into the factual issues so as to find whether or not the arbitrator grossly misdirected himself.

Thirdly the Applicant’s second ground of appeal to the Supreme Court is confusing.  Nowhere in the judgment is it held that the Appellant (Applicant) had resigned from Respondent’s employ.  Confusing as it is, I do not see how a superior court will consider this ground of appeal.

To that end therefore I find that there are no bright prospects of success for applicant.

Leave to appeal is consequently denied.

J. Mambara and Partners–Applicant’s Legal Practitioners