Stanzano Trucking v Caroline Kawadza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/727/14
HELD AT HARARE 16TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/727/14

HELD AT HARARE 16TH OCTOBER 2014		CASE NO LC/H/465/14

& 24TH OCTOBER 2014

In the matter between:-

STANZANO TRUCKING				Appellant

And

CAROLINE KAWADZA				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		In default

For Respondent		Mr B Ngwenya (Legal Practitioner)

MAXWELL, J:

Respondent was employed by appellant for five years as an Accountant.  She went on maternity leave in January 2013.  During the period she was on maternity leave her salary was reduced from $700 to $450.  On 6 June 2013 her employment was terminated.  Aggrieved, she approached the Ministry of Labour complaining of unfair labour practice in that she was discriminated in the reduction of her salary and was not given notice prior to the termination of her employment.  The matter was not settled at conciliation and was subsequently referred to arbitration.

On 7 April 2014 the arbitrator found in favour of the respondent.  He ordered her reinstatement with full pay and benefits as well as payment of her salary of $700 per month with effect from January 2013.  If reinstatement is no longer possible, parties were to negotiate for damages in lieu of reinstatement.  If parties failed to agree either party would refer the matter to the arbitrator for quantification.  On 3 June 2014 appellant noted an appeal.

The grounds of appeal are

The learned arbitrator erred at law by holding that there was no mutual termination when there was evidence showing that the parties had agreed to terminate their contract.

The learned arbitrator erred concluding that the respondent’s salary was arbitrarily reduced when at the same time she admitted that the salaries were reduced for everyone, which position is clear.

The learned arbitrator erred in relying on the figures of a document just plucked from the air despise it having no reference by way of identification that it was coming from the employer, which reliance was outrageous in its defiance of logic that no reasonable person acting on it would have concluded in that way.

The learned arbitrator erred in ultimately ordering a reinstatement of the respondent when it was clear that parties mutually terminated their contract.

The learned arbitrator erred in finding that there was discrimination on the reduction of salary  when in fact the salary reduction was done to every employee.

In response, respondent raised the issue that the appeal was filed out of

time and appellant was approaching the court with dirty hands.  Appellant has not sought and obtained an order suspending the award and had also not complied with the award.  In any event the appeal was improperly before the Court as it is on factual findings.

Appellant failed to comply with Rule 19 of this Court’s Rules, Statutory Instrument 59/2006, in that it did not file heads of argument.  On 24 July 2014 respondent filed heads of argument arguing that appellant is barred for failing to file heads of argument.  Respondent further elaborated on the issues raised in response to the appeal.  Appellant defaulted on the date of the hearing.  Respondent urged the Court to proceed in terms of Rule 19 (3) (a) of S.I. 59/2006 and dismiss the appeal with costs on a higher scale.  The request for costs on a higher scale was premised on the fact that appellant had not rectified the anomalies pointed out in the response to the appeal.  Appellant has neither sought to stay the execution of the award nor complied with same.  In her view appellant appealed simply to delay compliance with the award.  Further appellant chose not to attend the hearing despite being served with the notice of set down.

I am satisfied that the objection raised by respondent that the appeal is on factual issues and is therefore improperly before the Court has merit.  Coming to the issue of costs on a higher scale, in my view, they are warranted where an unsuccessful  party’s conduct amounts to an abuse of Court process and his actions result in unwarranted expense to the other party.  For this view see Mudzimu v Municipality of Chinhoyi and Another 1986 (1) ZLR 12.  I am not persuaded that this is the case on the facts of this matter.  Nothing precluded the respondent from making an application in terms of Rule 19 (3) (a) for the appeal to be dismissed.  Such an application would have disposed of the matter without notice to the appellant if respondent so wished.  I am however satisfied that costs on an ordinary scale are warranted.

I order accordingly that

The appeal be and is hereby dismissed with costs.

Chinawa Law Chambers, respondent’s legal practitioners