Herman Gmeinner v Lazarus Mudzingwa & Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/317/2016
HARARE, 29 FEBRUARY 2016
CASE NO. LC/H/317/2016
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/317/2016

HARARE, 29 FEBRUARY 2016			    CASE NO. LC/H/APP/1304/15

AND 13 MAY 2016

In the matter between:-

HERMAN GMEINNER					Applicant

And

LAZARUS MUDZINGWA & ORS			Respondents

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr T. Ndoro (Labour Officer)

For Respondents		Mr S. Chihombe (ZESSCWU)

CHIDZIVA, J:

This is an application for Stay of Execution of the decision by Honourable Arbitrator S Nehohwa that was handed done on 29 September 2015.  In her award  the Arbitrator ordered as follows;

“In light of the analysis I make the following disposition

That NECWEI has jurisdiction over the matter as the responsible authority is SOS Children’s Village Association which is registered as a Welfare Organisation Category B.

That claim for underpayment of wages be and is hereby dismissed for lack of merit.

That the Respondent did not pay transport and housing allowances for July 2013 to February 2014 to claimants and shall pay the total amount of $2 680.00 as follows;

Samuel Mainato		$880

L Mudzingwa		$880

N Parwaringira 		$880

I so award”

The applicant’s grounds for this application are that

The 1st Respondent intends to execute for full recovery of the disputed amount $2 680,00.

The Applicant will suffer irreparable harm if the outcome of the appeal is pre-empted if stay of execution is not granted.

The matter should have been handled by NEC for School Development Associations/Committees (NECSDA/CS) and not the NEC for the Educational and Welfare Institutions (NECWEI) CBA.

The Applicant on these grounds therefore prayed for the setting aside of the award.

The Respondents in response told the court that;

NEC for Welfare and Education has jurisdiction over the matter.

The Respondents in their submissions maintained that the School was registered as a Welfare Institute.  On page 27 of the record there is a letter dated 31 January 2012 in which the Applicant renounced their affiliation to NEC School Development Committees indicating that

“We have come to realize that there is a NEC that caters for schools like others, which are in a low income Community where we charge very law levies.  Even though the levies charge are low, the majority of the parents still struggle to pay.  On another note, Herman Gmeinner High School mostly caters for the vulnerable in the Local Community.”

Therefore for the Applicant to say that they re-registered the institution under this NEC that they had withdrawn from under the reasons given in the letter raises eyebrows.

If the school is controlled by SOS Children’s Village it cannot be controlled by Government since it’s a Welfare institution.

Furthermore the draft order states that the order should be set aside.  This is not an appeal or review.  The prayer in this matter is incompetent.

In view of the foregoing therefore

IT IS ORDERED THAT

The Arbitrator had jurisdiction to deal with this matter.

The prayer by the applicant is incompetent.

The application be and is hereby dismissed with costs.