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Citation
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Judgment date
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| November 2013 |
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Applicant failed to show sufficient cause, particularized irreparable loss or lack of delay to justify stay of execution.
Civil procedure – Stay of execution – Discretionary relief – Requirements: prima facie success on appeal; substantial/irreparable loss; balance of convenience; absence of unreasonable delay.
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29 November 2013 |
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Applicant failed to show sufficient cause for stay of execution pending appeal due to lack of irreparable loss and unreasonable delay.
Stay of execution – Order XXXIX r.5(3) CPC – prerequisites: substantial/irreparable loss, absence of unreasonable delay, security – balance of convenience – immovable property traceable and compensable by damages.
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29 November 2013 |
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Pending criminal investigations can amount to good cause for delay in filing an unfair termination claim where termination was unlawful.
Labour law – condonation for delay – whether pending criminal investigations amount to good cause for late filing of unfair termination claim; Employment and Labour Relations Act s.37(5) – prohibition on employer taking disciplinary action while criminal proceedings relating to same conduct are pending; Test for condonation – whether reasons would reasonably prevent a reasonable employee from filing in time; Revision powers – s.91(4) ELRA; CMA decision quashed and matter remitted to arbitration.
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29 November 2013 |
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Appeal dismissed as time-barred where decree availability was unproven and no extension to file was sought.
Civil procedure — limitation of actions — computation of time for appeal — availability/certification of judgment and decree — duty to apply for extension where decree availability disputed — requirement to prove registry delay.
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29 November 2013 |
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Time spent obtaining a copy of the judgment is excluded when computing the 60‑day appeal period under section 38.
Land Disputes Courts Act s.38 – appeals from Ward Tribunal – silence as to computation of sixty day period – reference to Law of Limitation Act for computation. Law of Limitation Act s.19(2) – period for obtaining a copy of decree/judgment excluded in computing time for appeal. Civil Procedure – necessity of a copy of judgment to frame grounds of appeal – time spent obtaining copy may excuse apparent delay.
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29 November 2013 |
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Respondent’s long possession and sale documentation established title; appellant failed to prove ownership.
Land law – ownership, burden of proof – sale agreement and village acknowledgment – long undisturbed occupation – adverse possession; appellate deference on findings of fact; assessors’ opinions under section 24 of the Land Disputes Courts Act; inadmissibility of raising new issues/res judicata on second appeal.
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28 November 2013 |
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27 November 2013 |
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Appeal allowed: ex parte judgment set aside due to procedural inconsistency and failure to consider relevant circumstances.
Civil procedure – ex parte judgment – application to set aside – inconsistency in trial court orders (ex parte hearing vs. issuing summons) – failure to consider advocate’s inability to attend due to traffic – remittal for inter partes hearing.
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26 November 2013 |
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Court set aside ex parte judgment, finding appellants' non‑appearance excused and trial court orders inconsistent.
Civil procedure – setting aside ex parte judgment; procedural consistency in court orders; adequacy of excuse for non‑appearance (traffic caused by presidential motorcade); effect of failure to serve notice of hearing.
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26 November 2013 |
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Failure to hold trial-within-a-trial rendered retracted confessions inadmissible; convictions quashed and partial retrial ordered.
Confessions – cautioned and extra-judicial statements – objection and retraction – duty to hold trial-within-a-trial in subordinate courts; Evidence – voluntariness – failure to conduct trial-within-a-trial is fundamental/incurable irregularity – expunction of disputed statements; Remedy – partial nullification of proceedings and order for retrial from point where irregularity arose; Recent possession/identification – secondary issues after expungement of confessions.
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26 November 2013 |
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Failure to cite s14(1) and reliance on doctored medical evidence led to dismissal of the extension application.
Limitation of actions – section 14(1) Law of Limitation Act – requirement to cite correct sub-section to properly move the court; extension of time – "good cause" test; evidential sufficiency – credibility and dating of medical chit; doctored medical evidence defeats claim of incapacity; dismissal with costs.
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26 November 2013 |
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Whether a court may order compensation under s.40(3) ELRA where reinstatement is not viable and who decides against reinstatement.
Labour law – Remedies for unfair termination – Scope of section 40(3) ELRA – Whether compensation under s.40(3) is available where reinstatement is infeasible – Discretion of CMA/Labour Court to award reinstatement or compensation – Whether decision not to reinstate rests with adjudicator or employer.
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25 November 2013 |
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Appeal dismissed: prosecution failed to prove trespass or ownership; ownership disputes must be resolved civilly.
Criminal law – burden of proof – prosecution must prove trespass beyond reasonable doubt; any doubt benefits the accused. Trespass – conviction requires proof of claimant’s lawful ownership of the land allegedly trespassed upon. Civil vs criminal jurisdiction – ownership disputes should be determined in civil proceedings; prior civil judgments bind only if they relate to the same land. Evidence – failure to call corroborative witnesses and continuous nature of alleged acts can weaken trespass allegations.
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21 November 2013 |
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Court reduced arbitrator's 18‑month compensation to the 12‑month statutory minimum and ordered nine years' severance pay.
Labour law – unfair termination – procedural fairness – compensation under section 40(1)(c) – minimum 12 months' remuneration; Labour law – severance pay under section 42 – entitlement after continuous service – court's power under Rule 55(2) to grant statutory relief not claimed at CMA; appellate revision – correction of excessive arbitral awards.
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21 November 2013 |
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CMA award upheld for unfair dismissal but reduced to claimed compensation; subsistence payable until transport to recruitment place.
Labour law – arbitration awards – requirements of Rule 27(3) GN.67/2007 – evaluation, reasons and orders; unfair termination – substantive and procedural fairness – disciplinary findings, opportunity to respond and procedure; jurisdiction of arbitrator to grant reliefs beyond referral form – limits on suo moto additions; subsistence/transportation allowance – entitlement and timeframe under section 43(1)(c) ELRA No.6/2004.
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21 November 2013 |
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Leave to appeal granted on six legal issues including dual awards of compensation and High Court's determination of unpleaded issues.
Labour law — leave to appeal under s.57 Labour Institutions Act — appeal limited to points of law; whether statutory and contractual compensation can both be awarded post‑termination; High Court's failure to determine framed issues and determination of unpleaded issues; awards beyond prayers; interpretation of termination clauses; senior‑employee exceptions.
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21 November 2013 |
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Sale by a co-heir of undivided estate land is void if the seller lacked title; Tribunal exceeded its powers ordering estate distribution.
Estate law – Undivided estate – Co-heir sold part of estate before distribution – Sale by co-heir without title void ab initio; Tribunal exceeded jurisdiction by ordering estate administration.
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21 November 2013 |
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Application for bail struck out due to incorrect statutory citation and affidavit containing legal material.
Criminal procedure — bail pending hearing — importance of properly moving the court by correct statutory citation; affidavits must contain facts only (Order XIX r.3(1)); defective affidavits may be cured by striking offending paragraphs, but jurisdictional defects warrant striking out; practice of counter-affidavits and preliminary points of objection.
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20 November 2013 |
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Reliability of identification parades and voluntariness of a retracted confession supported convictions; appeal dismissed.
Criminal law – Armed robbery – Identification parades – Reliability of in‑court / parade identifications where witnesses saw accused in daylight prior to parade. Criminal procedure – Confessional/caution statements – Retraction and voluntariness – Trial court’s duty to assess voluntariness and effect of excluding confession. Evidence – Sufficiency of prosecution evidence and effect of non‑call of certain witnesses on safety of conviction.
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20 November 2013 |
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Properly conducted identification parades and sufficient eyewitness evidence upheld armed robbery convictions; confession not dispositive.
Criminal law – Armed robbery – sufficiency of evidence – eyewitness identification and identification parades – reliability where witnesses had prior opportunity to observe the accused. Criminal procedure – identification parade procedure and discrepancies in parade dates – effect on admissibility and weight. Criminal procedure – confession/caution statement – voluntariness inquiry and effect of excluding a retracted statement. Appeal – whether alleged procedural defects and non-production of certain witnesses vitiate conviction.
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20 November 2013 |
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Affidavit containing legal argument and conclusions breached CPC, rendering the bail application incompetent and struck out.
Affidavit requirements under Order XIX r.3(1) CPC; affidavits must contain only facts; impermissibility of legal argument, statutory citation and conclusions; curability of affidavit defects; remedy — strike out or expunge; bail chamber application competence.
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20 November 2013 |
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A review cannot substitute for an appeal; court functus officio and the review application was rejected as incompetent.
Civil procedure – Review – scope limited to discovery of new and important evidence or error apparent on face of record – Review cannot be used as substitute for appeal – Court functus officio regarding its own decision – application held incompetent.
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20 November 2013 |
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Review application failed where grounds were appealable, not new evidence or error apparent; Court held review incompetent.
Civil Procedure – Review under Order XLII Rule 1 – Review limited to new evidence or error apparent on face of record – Not a substitute for appeal – Court functus officio regarding its earlier ruling.
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20 November 2013 |
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Review application dismissed as incompetent because issues raised were appellate, not review grounds, and court was functus officio.
Civil procedure – Review under Order XLII – Review limited to discovery of new evidence or error apparent on face of record – Court functus officio – Competency of review where grounds are appellate (nullity, lack of jurisdiction, misdirection).
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20 November 2013 |
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Lack of evidence of a weapon warranted substituting armed robbery convictions to burglary and reducing sentences.
Criminal law – Armed robbery vs burglary – requirement of proof of weapon or threat for armed robbery – where no evidence of arms, conviction may be substituted to burglary – appellate substitution of conviction and reduction of sentence.
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18 November 2013 |
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18 November 2013 |
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Armed robbery conviction substituted to burglary where no evidence of weapon; sentence reduced to fifteen years.
Criminal law – Armed robbery versus burglary – Requirement of proof of weapon for armed robbery – No evidence of a panga; nocturnal forcible entry and demand for money constituted burglary – Appeal substitution of conviction and reduction of sentence.
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18 November 2013 |
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Armed robbery conviction substituted to burglary where no evidence of a weapon; sentence reduced to 15 years.
Criminal law – Burglary v. Armed robbery; requirement of proof of weapon for armed robbery; substitution of conviction where evidence fits lesser offence; identification and arrest shortly after offence.
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18 November 2013 |
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Application struck out: incompetent for improper citation and barred by res judicata.
Labour procedure – applicability of Civil Procedure Code (Order XLI) to execution/referential matters in the Labour Court; need for proper citation and amended pleadings. Civil procedure – competence of an application where purported leave to amend is not reflected by a filed amended application. Res judicata – finality of judgments in lower courts and on appeal prevents relitigation in another forum. Procedural compliance – requirement for notice of representation under Labour Court Rules (Rule 44).
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15 November 2013 |
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Application struck out for being filed late and for failure to file a notice of representation.
Labour procedure — preliminary objection — extension of time and compliance with Court order — notice of representation required under Rule 44(2) — representation at CMA does not automatically extend to High Court.
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15 November 2013 |
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Sleeping on duty amounted to misconduct but dismissal was procedurally unfair; limited monetary reliefs awarded, no statutory compensation.
Labour law – Misconduct – Sleeping on duty by security guard; Procedural fairness – Termination – Employer’s duty to follow disciplinary procedure and consider lesser sanctions (Rule 12(4)(a),(b) GN No.42/2007); Remedies – payment of terminal benefits, unpaid leave, repatriation and limited overtime; Compensation under s.40(1)(c) excluded where misconduct established.
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15 November 2013 |
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Application dismissed as premature—disciplinary process not completed and CMA had not determined the dispute, so court lacked jurisdiction.
Labour law – jurisdiction – premature filing – requirement to exhaust workplace disciplinary process before CMA determination – revision to High Court only after CMA decision (s.86 ELRA).
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15 November 2013 |
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An affidavit is evidence and cannot be amended; a conceded defective counter-affidavit was struck out.
Civil procedure – affidavits as evidence; verification and jurat requirements under Oaths (Judicial Proceedings) and Statutory Declarations Act s.10; defective affidavits cannot be amended; court may strike out defective affidavits.
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12 November 2013 |
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Spouse as co-owner may challenge mortgage of matrimonial home without consent; preliminary objections overruled.
Civil procedure – preliminary objections; cause of action – challenge to mortgage of matrimonial home without spouse’s consent; locus standi of spouse/co-owner to sue despite title in spouse’s name; pleadings – O. VII r.1(f) jurisdictional averments need not be in strict chronological order; declaratory relief permitted (CPC s.7(2)); statutory protection of matrimonial home (Land Act s.112(3); Law of Marriage Act s.114).
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12 November 2013 |
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Conviction quashed where it relied on hearsay and involved a land-ownership dispute pending in civil proceedings.
Criminal law – Malicious damage to property – conviction cannot rest on hearsay where the declarant did not testify; Criminal procedure – improper forum – criminal court should not determine disputed land ownership pending in civil proceedings; Evidence – hearsay inadmissibility undermines conviction.
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11 November 2013 |
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11 November 2013 |
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Applicant granted extension to file revision; substantive jurisdiction and illegality issues reserved for the main application.
Labour law – extension of time – Rule 56 Labour Court Rules – good cause/sufficient reason; incompetent/struck-out filings; jurisdiction of CMA and allegations of illegality in awards; relief allowed to file revision within one month.
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8 November 2013 |
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Court confirms unfair‑dismissal award but reduces arbitrator’s excessive 24‑month salary award to the 12 months claimed.
Employment law – unfair dismissal – computation of limitation period for referral to CMA; adequacy of CMA Form 1 pleading substantive and procedural unfairness; consistency of arbitrator’s findings; arbitrator’s power (or lack thereof) to award relief exceeding that claimed in referral.
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8 November 2013 |
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Revision dismissed; CMA award confirmed but 24‑month salary award reduced to the 12‑month claim.
Labour law – limitation period for referral to CMA – calculation excluding first day; Labour law – unfair termination – sufficiency of pleadings on CMA Form 1; Administrative law – review of arbitration award – consistency of reasons; Relief – arbitrator cannot award more than claimed in referral form (suo moto increase unlawful).
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8 November 2013 |
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Dismissal for alleged gross negligence was unfair; arbitrator’s excessive 24-month award reduced to the 12 months claimed.
Employment law – unfair dismissal – gross negligence – employer must prove connection between employee and alleged loss. Disciplinary procedure – evidentiary sufficiency of shift handover reports. Labour institutions – arbitrator’s powers – cannot award relief exceeding that claimed on referral. Remedy – confirmation of unfair termination finding; correction of excessive monetary award.
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8 November 2013 |
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Dismissal for alleged gross negligence was substantively unfair; CMA award reduced from 24 to 12 months' salary.
Labour law – unfair dismissal – gross negligence – insufficiency of documentary evidence (shift handover reports) to connect employee to loss – arbitrator exceeding claimed relief – award revised downward to claimed amount.
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8 November 2013 |
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The applicant's summary dismissal was unlawful due to procedural breaches and insufficient proof of misconduct; awarded 12 months' pay.
Labour law – unfair termination – procedural and substantive fairness under Employment and Labour Relations Act 2004 and GN 42/2007 (Code) Jurisdiction – cause of action deemed to arise on date of dismissal letter Evidence – burden to prove misconduct; senior management responsibility can negate employee culpability Remedy – reinstatement may be refused where delay and partial fault exist; compensation as alternative remedy
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8 November 2013 |
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Revision dismissed: applicant failed to prove entitlement and did not follow employer's repatriation instructions.
Employment law — Revision of CMA arbitration award; entitlement to repatriation, luggage transport and subsistence allowances; burden of proof on claimant; employer's offer of repatriation and claimant's failure to follow up.
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8 November 2013 |
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Revision of CMA award dismissed for lack of evidence and applicant’s failure to follow respondent’s repatriation process.
Labour law — Revision of CMA award under s.91 EIRA — Burden of proof on claimant to establish entitlement to post-termination allowances — Repatriation and luggage allowance — Employer’s discretion under Standing Orders to provide transport in kind or cash — Failure to pursue administrative repatriation process bars relief.
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8 November 2013 |
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High Court dismisses premature revision; applicants must first seek CMA restoration of the complaint under section 88(8).
Labour law – Arbitration – Dismissal for non-attendance – Application to restore dismissed complaint at CMA – Section 88(8) Employment and Labour Relations Act (as amended) – requirement to exhaust CMA remedy before seeking High Court revision.
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8 November 2013 |
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Applicant’s revision dismissed; proper remedy for non-attendance is to apply to the CMA to restore the complaint.
Labour law – Revision of CMA ruling; dismissal for non-attendance; requirement to apply to CMA to set aside or restore dismissed complaints; scope of Labour Court’s revision jurisdiction; procedural remedy exhaustion.
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8 November 2013 |
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Employer failed to prove temporary status; oral termination without reason was substantively and procedurally unfair.
Employment law – Unfair termination – Oral termination without stated reason – Substantive and procedural unfairness under s.37(1),(2) ELRA; Employment particulars – Absence of written contract – Burden shifts to employer under s.15(6) ELRA; Temporary/CTA and visa/work-permit restrictions – employer’s duty to prove temporary status.
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8 November 2013 |
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Employer failed to produce written particulars; employee deemed permanent and dismissal held unfair, CMA award confirmed.
Employment law – unfair termination – section 37 Employment and Labour Relations Act – termination without valid reason is substantively unfair. Employment law – written particulars – section 15(1) and (6) ELRA – failure to produce written contract shifts burden to employer. Evidence – identity card and conduct may establish permanent employment where written contract absent. Procedural challenge – visa/work‑permit and CTA allegations insufficient to overturn CMA findings without documentary proof.
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8 November 2013 |
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CMA award restoring demoted teachers upheld; employer lacked authority to demote, revision dismissed.
Labour law – unfair demotion and reinstatement – CMA award upheld; Public Service law – Teachers Service Department powers over appointment/promotion; Procedural fairness – retrospective application of circulars disallowed; Review – alleged bias and specification of salary levels not established.
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8 November 2013 |
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Applicant lacked demonstrated authority to demote teachers; CMA award restoring posts and ordering arrears was upheld and revision dismissed.
Labour law – review of CMA award – restoration and payment of arrears; Administrative law – authority to promote/demote teachers under Public Service Act s.6(4); Non-retrospectivity of administrative circulars; Requirement to adduce specific evidence of post/grade and salary when challenging awards; Procedural fairness in demotion and use of proper authority.
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8 November 2013 |