Sengiyaphumula Mlambo v Lobels Bread (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/768/2014
HARARE, 28 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/768/2014

HARARE, 28 OCTOBER 2014		           	          CASE NO. LC/APP/H/296/14

AND 21 NOVEMBER 2014

In the matter between:-

SENGIYAPHUMULA MLAMBO						Applicant

And

LOBELS BREAD (PVT) LTD						Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Ms L. Shambamuto (Legal Practitioner)

For Respondent		Mr. A.T. Muza (Legal Practitioner)

MAXWELL, J:

On 6 June 2014 this Court allowed an appeal by the Respondent against an arbitral award in favour of Applicant.

The Applicant had been employed as a Sales and Marketing Executive by the Respondent.  In August 2012 he was advised to go on leave for two months due to a temporary suspension of plant operations.  On 1 November 2012 Applicant and other employees were advised that the business had been restructured.  Applicant’s position had been altered to that of a Stores Controller.  Discussions ensued but no agreement was reached on 14 February 2013.  Respondent terminated Applicant’s employment with an offer to pay an amount equivalent to three months’ salary in lieu of notice.  Applicant acknowledged receipt of the termination letter on 18 February 2013.  On 26 February 2013 Applicant purported to terminate his contract by resigning and thereafter lodged a complaint of constructive dismissal.  The matter went for conciliation then arbitration.  The arbitrator made a finding that the Applicant was justified in concluding that he had been constructively dismissed.  Respondent appealed which appeal was upheld by this court.

Applicant now seeks leave to appeal to the Supreme Court.  The basis of the appeal is that this court erred in holding that Respondent had a right to terminate the Applicant’s contract of employment on notice.  In response Respondent raised a point in limine to the effect that Applicant had not complied with Rule 14 of this Court’s Rules SI 59/2006.  On the merits Respondent submitted that Applicant had no prospects of success on appeal and the application ought to be dismissed with costs on a higher scale.

The Court is of the view that there was substantial compliance with Rule 14 and therefore condones the non-compliance.  In any event Respondent has not demonstrated that any prejudice resulted from the non-compliance.  The issue of termination of employment on notice has been subject to a difference of opinion.  I am of the view that there is probability that the Supreme Court may arrive at a conclusion different from the one reached.  I am therefore inclined to grant the application.

Accordingly I order that leave to appeal to be and is hereby granted.

MATSIKIDZE & MUCHECHE, Applicant’s legal practitioners

MAWERE & SIBANDA, Respondent’s legal practitioners