Travel House (Pvt) Ltd v Jacqueline Mawadza & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/78/2016
HARARE, 8 FEBRUARY 2016 &
CASE NO LC/H/APP/1234/2015
16 FEBRUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/78/2016

HARARE, 8 FEBRUARY 2016 &			CASE NO LC/H/APP/1234/2015

16 FEBRUARY 2016

In the matter between

TRAVEL HOUSE (PVT) LTD					APPLICANT

Versus

JACQUELINE MAWADZA					1st RESPONDENT

And

MERCY HOGO							2ND RESPONDENT

Before the Honourable R F Manyangadze J

For the Applicant	B Maruwa  (Legal Practitioner)

For the Respondent	T G Mukwindidza  (Legal Practitioner)

MANYANGADZE J:

This is an application for stay of execution of an arbitral award handed down on 16 September 2015, in terms whereof the applicant was ordered to pay the respondents a total sum of US$6 424-98 as arrear salaries. This was after the arbitrator ruled that the disciplinary proceedings that led to the respondents’ dismissal were null and void.

Aggrieved by the said arbitral award, the applicant noted an appeal with this court on 9 October 2015. It also noted this application for stay of execution of the arbitral award on 15 October 2015, pending determination of its appeal.

The requirements of an application for stay of execution of a judgment pending appeal were set out in South Cape Corporation (Pvt) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534, Zimbabwe Open University v Gideon Magaramombe & Anor SC 20-12, and Mbada Diamonds (Pvt) Ltd v Nhamo Chatevuka LC/H/63/2014. The applicant must satisfy the court that:

There is the possibility or potential for irreparable harm if the application is not granted.

There are prospects of success on appeal.

The balance of convenience is tilted in its favour.

On the possibility of irreparable harm, the applicant averred that if the appeal succeeds, the respondents would not be able to recompense the applicant. The total amount they would have executed on is US$6 424-98. Each respondent would be indebted to the appellant for about half this total amount. The applicant fears that the respondents will not be able to raise these amounts. They have not shown that they are running a business which is viable and profitable enough to meet such a commitment. In this regard, the applicant relied on the case of Zimbabwe Open University v G Magaramombe, supra were CHIDYAUSIKU CJ stated:

“On the matter before me it has been established that in the event of the University being successful on appeal, Magaramombe will not be able to restore the status quo ante. On this basis I am satisfied that the University will suffer harm if interim relief is not granted.”

In countering this averment, the respondents claimed that they are well able to restore the status quo ante. They contended that US6 000-00 is not a significant amount. The respondents however, did not substantiate how they would be able to raise the amount. They were not forthcoming on the nature of their business operations and the viability thereof. This may be because it is a subject of contention that they set up a business in circumstances that are tantamount to repudiation of their contract of employment with the applicant. They did not point to any other source of income. What consequently appears on record is their bald assertion that they are well able to recompense the applicant.

On a balance of probabilities, the applicant’s anxiety over the respondents’ ability to restore the status quo ante is well founded.

On the prospects of success, there are pertinent legal questions arising from the appeal. It has been submitted that the respondents decided not to attend the disciplinary proceedings that resulted in their dismissal. They did so on the basis that there were pending arbitral proceedings over non-payment of wages and negotiations on a retrenchment package which were yet to be concluded. Apparently acting on the advice of their legal practitioner, they were of the firm view that they could not attend the disciplinary hearing instituted by the applicant, as this amounted to engaging in a multiplicity of proceedings. The hearing was consequently conducted in their absence, and they were dismissed from employment. The arbitrator held that these disciplinary proceedings were a nullity. Was the arbitrator correct in taking this view? Should the respondents not have attended the disciplinary hearing, and at least raise a point in limine that such proceedings were improper in view of the pending arbitral proceedings and the yet to be concluded retrenchment process?

The other question is whether the respondents repudiated their contracts of employment with the applicant. The applicant based this averment on the fact that the respondents set up a travel agency business in direct competition with the applicant, thereby repudiating their contract of employment.

The arbitrator also regarded the non-payment of wages as repudiation of the contract of employment, on the part of the applicant. It is not clear on what legal basis he took such a view.

The court that will be seized with the appeal will most likely look into the requirements of repudiation of a contract of employment. It will also look into the question of whether section 124 of the Labour Act [Chapter 28:01] prevented the applicant from instituting disciplinary proceedings against the respondents. The respondents cannot regard it as a foregone conclusion that these issues will be resolved in their favour.

With these questions arising from the appeal, it seems to me improper to proceed with execution. Execution should, in my view, be held in abeyance until the determination of the appeal. Any inconvenience the respondents may suffer would be a delay in execution, should the outcome of the appeal be in their favour.

In the circumstances, it is considered to be in the interest of justice to grant the interim relief sought.

It is accordingly ordered that:

Execution of the arbitral award granted in favour of the respondents by Honourable T Zhou on 16 September 2015 be and is hereby stayed, pending determination of the appeal filed under Case No LC/MC/54/15.

Costs shall be in the cause.

Mugwadi & Associates, applicant’s legal practitioners

Bere Brothers, respondents’ legal practitioners