James Pasina & Another v Proton Bakers Bread (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/343/16
HELD AT HARARE 16 MARCH 2016
CASE NO
JUDGMENT NO LC/H/343/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/343/16

HELD AT HARARE 16 MARCH 2016				CASE NO LC/H/APP/09/16

& 27 MAY 2016

In the matter between:

JAMES PASINA & ANOTHER				Applicants

And

PROTON BAKERS BREAD (PVT) LTD			Respondent

Before The Honourable B S Chidziva, Judge

For Applicants			Mr K Makwara (Trade Unionist)

For Respondent		Mr B Peresuh (Legal Practitioner)

CHIDZIVA, J:

This is an application for leave to appeal to the Supreme Court against the decision of this court that was handed down on 18 December 2015.  In its judgment this court upheld the points in limine that had been raised by the respondent and dismissed the appeal.

The background of this matter is that applicants were charged with contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations S.I. 15/2006.  They were charged with

“any act of conduct or omission inconsistent with the fulfilment of the express, or implied conditions of his or her contract.”

They were found using their cell phones contrary to Company Policy.  When the (matter) applicants appeared before the Disciplinary Committee they admitted the case and apologised.  They were then dismissed.  The applicants then noted an appeal to the Labour Office and at arbitration the arbitrator Hon Mpango upheld the dismissal.

The applicants thereafter noted an appeal to this court and the respondent raised two points in limine namely that

the appeal did not raise questions of law.

the appeal was against the determination of the Disciplinary Authority and not the arbitrator.

The applicants has now filed an application for leave to appeal against the decision

of this court.  The applicants in their grounds for this application stated that

They have prospects of success on appeal.

The trial court grossly misdirected itself in dealing with and disposing of the matter which was never argued before it and whose resolution either of the parties had asked for.

To start with the respondent applied for leave to amend its response and this was

duly granted.  The points in limine are as follows

The appellants’ appeal raises no question of law.

The appeal is predicted on the decision of the Disciplinary Authority and not the arbitrator.

This court in its judgment found that the appellants only challenged factual findings.

They also did not point out that the “the misdirection on factual findings were so serious as to amount to an issue of law” as provided for in the case of Jestinos Gwarinda & 5 Others v Softex Tissue LC/H/213/2008.

The court also found that the applicants did not clearly state in their papers that they were appealing against the decision of the arbitrator.

It is because of these reasons that this court upholds the points in limine and dismisses the appeal.

In view of the foregoing therefore I order as follows

The application for leave to appeal to the Supreme Court be and is hereby dismissed for lack of merit.

Applicants shall pay costs.

Honey & Blanckenberg, respondent’s legal practitioners