James North (Private) Limited v Edmore James

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/707/2013
HARARE, 28 NOVEMBER 2013 &
CASE NO LC/H/531/2011
17 JANUARY 2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/707/2013

HARARE, 28 NOVEMBER 2013 &		      CASE NO LC/H/531/2011

17 JANUARY 2014

In the matter between:-

JAMES NORTH (PRIVATE) LIMITED				APPLICANT

Versus

EDMORE JAMES							RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Applicant			C Mucheche (Legal Practitioner)

For the Respondent			R Katsiga (Trade Unionist)

KUDYA J:

This is an application for leave to appeal to the Supreme Court, against the decision of this Court, where it allowed the appeal by the employee in a matter where the N.E.C. had confirmed his dismissal by the Respondent/employer.

The basis of the application is that, this Court erred by finding that the employee had to be re-instated, thus interfering with the decision of the Disciplinary and Grievance Committee as affirmed by the N.E.C appeals committee, yet in the Applicant’s view the dismissal decision was not so outrageous as to defy logic and common sense and to thus warrant interference by the Superior Court.

The Applicant also argued that, this Court erred at law by finding that the appeal had merit yet, in its view the Court did not pay close attention to the merits of the Appellant’s case against the then Respondent.

In response to the application, the Respondent filed heads of argument where in essence he maintained that, the judgment allowing the appeal was unassailable. In his view, the matters which the employer took issue with were adequately addressed in the judgment. To that extent, the Respondent/employee maintained that the application had no merits and that it should be dismissed as such.

On the date of the hearing of the application and in its heads of argument in this application, the Applicant raised a point at the outset that, the application was effectively an unopposed application taking into account the fact that the Respondent/employee had flouted the Labour Court Rules by failing to file with the Court a notice of his opposition of the application, but instead went ahead and filed heads of argument on the matter.

The Applicant however, went on to withdraw that point citing the fact that, since the Respondent is not a lawyer that could explain his failure to adhere to the Rules. To that extent the Applicant prayed that, the matter be decided on the merits.

On the other hand, the Respondent had argued in his heads that, the application was out of time as in his view it was made some thirty-two days after the judgment sought to be appealed against. In response the Applicant subtracted all the public holidays which were over the period in question and the calculation showed that the application was made on the thirtieth day. This made it unnecessary for the Applicant to seek any condonation.

The Court was satisfied that the timelines argument had no merit and it had to be dismissed. The disposal of the above points at the outset led the Court to then deal with the merits of this application only.

On the merits, all that the Applicant indicated was that, the appeal which was upheld by this Court did not show that, the decision appealed against was an outrageous one. In its view, upholding the appeal amounted to a misdirection at law, which misdirection warranted the Supreme Court’s interference.

It also argued that the issue of the right to strike was a grey area which it hoped could be clarified by the Supreme Court if the appeal were to find its way to that court. It thus prayed that leave to appeal be granted on the above basis.

The test used in applications for leave to appeal to the Supreme Court is set out clearly in the Act. Section 92 indicates that, one can only appeal to the Supreme Court on a point of law. The definition of a point of law is also now clear in the wake of judgments like that of Sable Chemicals v Peter Easterbrook SC/18/10.

Based on the above principles, the only question to be answered by this Court is whether the Applicant managed to demonstrate that the instant case is one which deserves to have leave granted so that it finds its way to the Supreme Court.

A reading of the submissions by the Applicant shows that, all it has done is to repeat the arguments which it advanced during the hearing of the appeal. The Court concluded that those arguments were not good enough for the then appeal to be dismissed.

All that it stated was that this Court failed to pay attention to the merits of the case. Applicant did not state the exact merits which it argued the court overlooked. The court also noted that it is not clear what the Applicant would want the Supreme Court to pronounce about the right to strike.

There is no point of law which has been raised by the Applicant which warrants the granting of the leave sought. The judgment in the appeal case spells out clearly why the Court was of the view that the N.E.C had erred grossly in confirming the Appellant’s dismissal. It is its considered view that, there is nothing placed before it by the Applicant which warrants the Supreme Court’s interference.

IT IS ORDERED THAT:

The application for leave to appeal being devoid of merit, it be and is hereby dismissed.

Each party to bear own costs.

L KUDYA

JUDGE – LABOUR COURT

Matsikidze & Mucheche- Applicant’s Legal Practitioners