TEL ONE (Pvt) Limited V Tayib Mutodzaniswa

IN THE LABOUR COURT OF ZIMBABWE                    JUDGMENT NO. LC/H/347/2013
HARARE ON 10 JUNE & 16 AUGUST, 2013                CASE NO. LC/ H/331/2012
In the matter between



TEL ONE (PVT) LIMITED                          –              Appellant
And

TAYIB MUTODZANISWA                             –              Respondent




Before The Honourable E. Makamure, President
For Appellant       - Mr J.Dondo (Legal Practitioner)
For Respondent      - Mr B. Peresuh(Legal Practitioner)




MAKAMURE, E.

      The Respondent was dismissed by the Appellant.               The Respondent

appealed internally. The domestic appeal process reversed the dismissal and

substituted it with written warnings and an order for the Respondent’s

reinstatement. The Appellant employer was aggrieved by the decision to

reinstate the Respondent.     Before it complied with the decision it appealed

against that decision to this court.



      The Respondent has now raised a point in limine. The Respondent submits

that it is peremptory for the Appellant to comply with the decision of its National

Hearing Committee before approaching this court.             In the absence of the

compliance the Appellant ought to have applied for suspension of the decision

being appealed against. This, the Respondents submits, is what the Labour Act

[Chapter 28:01] (The Act) provides. In the result the Respondent submits that
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the appeal be struck off the roll until the Appellant has purged its non

compliance.



         It was averred on behalf of the Appellant that a contrary view is held. Mr

Dondo who appeared on behalf of the Appellant contended that the net effect

of the



provisions of Section92E of the Act is that the decision being appealed against

is not suspended. At common law on the other hand, noting of an appeal

suspends the operation of such a decision. This means that the common law

position has been altered.              Mr Dondo proceeded to aver that it is the

Respondent who ought to enforce the decision.



         It is important to refer to Section 92E of the Act which provides as follows


         “Appeals to the Labour Court generally.
         (1)    An appeal in terms of this Act may address the merits of the determination or decision
                appealed against.
         (2)    An appeal in terms of subsection (1) shall not have the effect of suspending the
                determination on decision appealed against.
         (3)    Pending the determination of an appeal the Labour Court may make such interim
                determination in the matter as the justice of the case requires’’



         What is clear for Section 92 E (2) (above) is that an appeal against a

decision does not suspend the operation of such a decision. [See also Kingdom

Bank Workers Committee vs. Kingdom Bank Financial Holdings H.H.

302/2011]. The parties appear to be in agreement in this respect. What this

means is that a party which has been ordered to perform must comply.

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      In present case the Appellant is bound by the decision to reinstate and

penalize the Respondent with the written warning.         Clearly the Respondent

cannot reinstate himself. It is the employer which has the power to do so. In

this case not only does it have the power to do so; it has been ordered by a

competent authority to reinstate. On the other hand no matter how willing an

employee maybe to resume employment, if the employer has not called him to

take up the employment, he will remain dreaming and wishing he could

commence work and no more.         The difficulty encountered by employees in

asserting their rights against employers was highlighted by the Supreme Court

in Isaac Mukwinya vs. Clan Transport (Pvt) Ltd SC47/2001 (Mukwinya). While

the Mukwinya case dealt with different issues from the matter at hand, the

observation by the Supreme Court in that case is real. I respectfully associate

myself with the remarks in Mukwinya in confirming challenges faced by

employees when they try to assert their rights against employers.

      I find the assertion that it was the employer who ought to have enforced

the order totally misplaced. Section 92E (2) is to ensure that an employer who

is serious with an appeal will seek the suspension of the operation of the award

and forcefully pursue the prosecution of the appeal. As is common cause, under

common law the order would have been suspended by the noting of an appeal

against that decision. The purpose of The Act is among other things, to ensure

expeditions resolution of labour disputes.     Where as under common law a

labour dispute could go on indefinitely once an appeal was lodged, so to speak,

under The Act as it now is, only serious Appellants are provided for. If a party is

serious with an appeal they should seek to have an interim determination in the

form of suspension of the operation of the award. Otherwise they should just

comply with the determination award. End of story. The successful application
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for suspension of the operation of an award in a way safeguards the interest of

both parties. The employee will be required to wait and not for use funds which

arising from an order of damages. Should an employee be successful, they will

have their award.      On the other hand should the employer succeed the

employee will not stress by having to look for funds to refund an employer.

Equally the same employer will not suffer possible irreparable of failure to

recoup thin money harm when they succeed. The employee will not have had

access to the award of damages.



       Thus in the present matter the Appellant ought to have ensured that an

interim order was sought in order for the appeal to be properly before the

court. I therefore found that the point in limine was properly raised. The appeal is

therefore not properly before the court. Either the Appellant complies with the

order of the National Hearing Committee or seeks the suspension of the

operation of that order. Until such time as the Appellant has purged itself of the

“dirty hands” the matter cannot be placed before this court.



       In the circumstances it is ordered that the matter be and is hereby struck

off the roll.



Dondo and Partners – Appellant’s Legal Practitioners

Honey and Blackenberg- Respondent’s Legal Practitioners




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