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Citation
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Judgment date
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| December 2020 |
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Application seeking interpretation of association rules struck out for failure to attach the relied-upon constitutional provisions.
* Civil procedure – pleadings and annexures – duty to attach instruments relied upon – association constitution and rules must be produced when central to relief sought.
* Evidence – who alleges must prove – absence of relied-upon provisions permits adverse inference.
* Interpretation of internal organizational law – Court cannot interpret provisions not before it.
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31 December 2020 |
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Applicant failed to prove good cause for delay; condonation denied and CMA award upheld.
Labour law — extension of time/condonation — applicant must show good cause and account for each day of delay — burden of proof on alleging party (Evidence Act s.110(1)) — time limits under Labour Institutions (Mediation and Arbitration) Rules, Rule 10(1).
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24 December 2020 |
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Application for revision not time-barred where applicant filed within court-ordered 21 days despite affidavit omission.
* Labour law – Revision of arbitration award – Time limit under section 91(1)(a) ELRA – application filed within court-ordered 21 days after original application struck out regarded as timely. * Procedural law – Leave to refile – omission in affidavit cured by attachment of the court order granting leave.
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24 December 2020 |
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Procedurally unfair dismissal where substantive reason existed — compensation must be twelve months' remuneration, not basic salary.
Labour law – unfair termination – substantive versus procedural fairness; burden of proof on employer to prove fairness; disciplinary hearing evidence requirements (GN.42/2007 Rule 13); remedy: reinstatement inappropriate where substantive reason exists; compensation assessed on remuneration not basic salary.
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24 December 2020 |
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Termination was substantively and procedurally fair; CMA award upholding dismissal is confirmed and revision dismissed.
Labour law — termination for misconduct — substantive fairness (s37(2)) — procedural fairness — disciplinary hearing and representation — interplay with criminal proceedings (s37(5) and Code of Good Practice) — review of CMA award.
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24 December 2020 |
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Labour Court lacks jurisdiction over disputes from repealed laws not pending before the former Industrial Court.
Labour law — jurisdiction over disputes from repealed laws — amended third schedule para 13(3)(a)(b) and 13(4) — jurisdiction limited to matters pending before the former Industrial Court; Rule 48(3) Labour Court Rules — enforcement of Labour Court decisions only; application struck out for want of jurisdiction.
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24 December 2020 |
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An unauthorised representative’s sole testimony cannot prove differing individual employment claims; CMA award set aside and remitted.
Labour law – representative appearance – Rule 44 GN. No.106/2007 – mandate required for one person to represent multiple claimants; where employees have different employment terms each must prove individual claims; CMA award based on unauthorised representative’s sole evidence improperly procured – revision and remittal ordered.
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24 December 2020 |
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A successor public corporation is not liable for proceedings instituted against an individual officer; application dismissed as wrong party.
Labour procedure – execution proceedings – proper party – successor public corporation – GN No. 414/2018; Order 5(3) substitutes suits by/for the corporation only; suits against individual officers are not transferred; corporate veil principles in private company cases are distinguishable and inapplicable to public corporations.
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24 December 2020 |
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Absence of a written transfer meant employee remained at original duty station and was entitled to unpaid subsistence allowances.
Labour law – transfer of duty station – collective bargaining agreement requiring written transfers; entitlement to subsistence/transfer allowances when no written transfer produced; proof of payment of terminal benefits; scope of CMA Form 1 claims; review of CMA award.
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22 December 2020 |
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Condonation was proper; dismissal substantively justified but procedurally unfair, entitling employee to limited compensation.
Labour law — condonation for late referral — exhaustion of internal remedies; Employment law — substantive fairness vs procedural fairness in dismissal for misconduct; Disciplinary procedure — irregular appointment/composition of inquiry/probe committee; Remedies — compensation for procedural unfairness (limited months' salary) and setting aside of CMA award.
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18 December 2020 |
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A representative applicant cannot swear an affidavit on behalf of others without prior court leave; defective application struck out, refile permitted.
Labour procedure – Representative suits – Rule 44(2), Labour Court Rules GN 106/2007 – Requirement of prior leave to represent others; Affidavit validity – one applicant swearing on behalf of others without leave; Procedural defect – incompetency and striking out; Leave to refile granted.
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18 December 2020 |
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Blanket affidavit verification failing to distinguish knowledge from belief renders the application incompetent and is struck out, with leave to refile.
Civil procedure — Affidavit verification — Blanket verification as to "knowledge and belief" — Need to specify paragraphs based on personal knowledge or belief; defective affidavit renders application incompetent; striking out with leave to refile.
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18 December 2020 |
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CMA lacked jurisdiction over a 1968 dispute; Act not retrospective, so CMA award invalid and quashed.
* Labour law – Temporal application of statute – Employment and Labour Relations Act (2004) not retrospective; disputes before commencement to be governed by repealed laws (Third Schedule, para 7(1)). * Transitional jurisdiction – CMA’s power to arbitrate disputes from repealed laws limited to cases brought by Labour Commissioner or pending before Industrial Court (as per 2010 amendments). * Jurisdiction – Award rendered by forum lacking jurisdiction is invalid; Labour Court cannot revise an invalid award.
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18 December 2020 |
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An affidavit whose jurat names a different person than the deponent is incurably defective; application struck out.
Labour procedure – preliminary objection – affidavit formalities – jurat of attestation must correctly identify deponent – Notaries Public and Commissioner for Oaths Act s.8 – discrepancy in jurat naming different person renders affidavit incurably defective.
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18 December 2020 |
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Failure to specify which affidavit paragraphs are based on knowledge or belief renders the application incompetent and led to striking out.
Labour procedure – Affidavit requirements – Verification clause must specify which numbered paragraphs are true of deponent's own knowledge and which are on information and belief (Order VI r.15(2) CPC applied via Rule 55(1) Labour Court Rules); failure renders affidavit incompetent and application liable to be struck out; overriding objective cannot cure mandatory defects.
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18 December 2020 |
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Inclusion of substantive grounds in a notice contrary to mandatory rule renders a revision application incompetent and it is struck out.
Labour procedure — Revision proceedings — Notice of application — Rule 24(2) Labour Court Rules — mandatory format and contents — inclusion of grounds in notice fatal — preliminary objection — striking out application; leave to refile.
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18 December 2020 |
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Employer failed to prove a fixed‑term contract; termination was substantively and procedurally unfair, CMA award upheld.
Employment law – burden of proving terms of employment (Section 15(6)); fixed‑term versus permanent contract; unfair termination – substantive and procedural fairness (Section 37, Code of Good Practice Rule 13); employer’s duty to await criminal proceedings (Section 37(5)); delay in issuing CMA award (Section 88(9)) – prejudice required to set aside award.
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14 December 2020 |
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A preliminary objection must be a pure point of law not requiring evidence; evidence-based CMA dismissal was quashed and remitted.
Labour law — Preliminary objection — Point of law must be apparent on pleadings and not require evidence — Section 35 Employment and Labour Relations Act — disputed factual issues cannot be decided as preliminary objections — CMA ruling based on evidence quashed and matter remitted for fresh mediation.
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14 December 2020 |
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Failure to determine work-permit legality vitiated CMA award; matter remitted for fresh determination.
Employment law – Validity of employment contract where employee lacks work permit; Natural justice – duty to frame and determine issues arising from evidence; Failure to hear parties on material issue vitiates arbitral award; Remittal for fresh determination.
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14 December 2020 |
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Filing additional review grounds without court leave rendered the application incompetent; strike out with leave granted.
Labour review — Competence — Filing additional grounds without leave — Natural justice and right to be heard — Procedural rules versus substantive justice — Strike out with leave under Rule 55(1)&(2) Labour Court Rules GN 106/2007.
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14 December 2020 |
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Misrepresentation of qualifications made the employment contract voidable; termination during probation was lawful and no damages awarded.
* Contract law – Misrepresentation (s.18(c) Law of Contract Act) – false academic qualification renders contract voidable; employer entitled to rescind. * Employment law – Probationary employment – termination during probation lawful where employee misrepresented qualifications; not covered by Part E unfair termination protections. * Remedies – No damages where contract rescinded for employee’s misrepresentation. * Procedural – Arbitrator’s summary of evidence and reliance on proof of misrepresentation upheld.
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14 December 2020 |
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Employer failed to prove valid reason for dismissal; court awarded twelve months' salary and statutory benefits.
Employment law – unfair termination – substantive fairness (burden to prove valid reason; need for reconciliation) – procedural fairness (Code not to be applied as rigid checklist; fair hearing principle) – remedies (Section 40 and 41 Cap 366 RE 2019; prohibition of double recovery).
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14 December 2020 |
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Delay in instituting the labour dispute unjustified; unproven negotiations do not constitute sufficient cause for condonation.
* Labour law – condonation/extension of time – sufficiency of reasons – necessity to account for each day of delay. * Negotiation/amicable settlement – cannot excuse delay absent proof or prior pleading. * Limitation – jurisdictional importance; discretion to grant extension must be judicially exercised and objectively assessed. * Burden of proof – party alleging negotiations or follow-ups must provide documentary evidence.
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14 December 2020 |
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Whether one respondent's testimony can prove separate claims of others and whether CMA observed procedural requirements.
Labour law – arbitration procedure – Rule 24(4) GN.67/2007; representation – authorised representative versus individual burden of proof; Evidence Act – burden to prove facts especially within one's knowledge; CMA award – revision and substitution.
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14 December 2020 |
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Compliance with a regulator's directive does not excuse an employer's failure to follow fair termination procedures; revision dismissed.
Employment law – unfair termination – substantive and procedural fairness; regulator directives do not absolve employer’s duty to follow termination procedure; joinder of regulator requires application by party; compensation discretionary (minimum 12 months) – 24 months awarded.
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14 December 2020 |
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Extension application struck out as improperly filed; court did not decide alleged illegality of amended CMA award.
* Procedure — Extension of time to file revision — illegality as ground for extension — but procedural propriety required.
* Labour law — CMA awards — amended awards, functus officio and time for amendment.
* Social security — inclusion of PPF/NSSF contributions as part of lost remuneration — contested legality.
* Locus/standing — Attorney General joining proceedings — necessity of live proceedings to join or seek relief.
* Delay and laches — relevance of promptness and accounting for delay when seeking extensions.
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14 December 2020 |
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Contradictory, unsubstantiated reasons and impecuniosity do not constitute sufficient cause for extension of time.
Labour procedure – extension of time/condonation – requirement to show sufficient or good cause; contradictory or speculative reasons undermine condonation; impecuniosity not sufficient cause; need for particulars and documentary proof of attempts to comply.
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14 December 2020 |
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Procedural defects in the disciplinary hearing rendered dismissal unfair despite a substantively valid reason; six months' compensation awarded.
* Employment law – unfair dismissal – distinction between substantive and procedural fairness. * Burden of proof – employer must prove valid and fair reason for termination. * Disciplinary procedure – requirement that disciplinary findings and recommendations be recorded and follow fair process. * Remedy – compensation under section 40(1)(c) for procedural unfairness.
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11 December 2020 |
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11 December 2020 |
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11 December 2020 |
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11 December 2020 |
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Applicant’s showing of possible late notification justified setting aside the ex parte judgment; matter to proceed inter partes.
Labour procedure – setting aside ex parte judgment – sufficient reason for non-appearance – notice and communication to counsel – court’s discretion to reopen matter.
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11 December 2020 |
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11 December 2020 |
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11 December 2020 |
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Whether an oral appointment and allowance payments created an employment relationship entitling the applicant to back pay.
Labour law – employment relationship – oral appointment and allowances versus formal employment; Ward Tribunal Act – appointment and three-year tenure of secretaries; Labour Institutions Act s.61 – presumptive factors for employee status; limitation of actions – six-year bar and effect of unlawfully constituted bodies on entitlement.
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8 December 2020 |
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Termination under an express fixed-term contract clause is not unfair termination; CMA award of remaining salary quashed.
* Employment law – Fixed-term contract – Termination clause allowing notice or pay in lieu – Exercise of contractual right not amounting to unfair termination. * Labour procedure – Parties bound by pleadings – Arbitrator exceeded jurisdiction by awarding remedies for breach of contract when matter pleaded as unfair termination. * Reliefs – Award of salary for remaining contract period quashed where not supported by the pleaded cause of action.
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8 December 2020 |
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Applicant failed to prove termination; CMA award of May salary upheld and revision dismissed.
* Employment law – alleged termination – burden of proof on employee to prove dismissal; attendance records and admissions as evidence of absence/abscondment. * Evidence – credibility and consistency of attendance register and cross-examination. * Remedies – tribunal entitled to award only proven salary where termination not established.
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8 December 2020 |
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Arbitrator's 24‑month compensation quashed; respondent partly negligent but employer also culpable, statutory benefits plus six months ordered.
• Labour law – unfair termination – sufficiency of evidence to establish employee negligence and entitlement to dismissal
• Proof of sick leave – necessity of medical/authorised leave evidence when relied on as defence
• Employer liability – contributory fault where weak internal controls facilitate loss
• Compensation – award must be justified and based on correct legal standard; excessive awards may be set aside
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8 December 2020 |
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CMA proceedings were quashed and the award set aside because the wrong (non-legal) party was sued, rendering the revision incompetent.
Labour law – wrong party sued – legal personality under Societies Act (Cap 337) – CMA proceedings and award nullity – quashing CMA award – revision incompetent arising from nullity.
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7 December 2020 |
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Unsubstantiated delay blamed on a former representative does not constitute sufficient cause for extension of time.
Labour law – Extension of time to file revision – Discretionary relief requiring sufficient cause – Delay attributed to former representative must be proved by evidence (correspondence or court requests).
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4 December 2020 |
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Judicial review struck out because applicant failed to exhaust university and public service appeal remedies.
Judicial review — Exhaustion of internal remedies — University Charter Staff Disciplinary Appeals Committee — Public Service Commission — premature filing — supervisory jurisdiction.
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4 December 2020 |
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Termination unsupported by admissible evidence was unfair; CMA rightly awarded compensation for remaining fixed-term salary.
* Employment law – unfair termination – substantive fairness – employer must prove misconduct by admissible evidence, not hearsay.
* Evidence – hearsay in disciplinary proceedings – absent primary witnesses or exhibits, allegations not proven.
* Remedies – compensation for unexpired period of fixed-term contract where termination is substantively unfair.
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4 December 2020 |
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A revision application was dismissed as time-barred for being filed without leave and lacking supporting evidence.
Labour law — Revision proceedings — Time limitation — Section 91(1)(a) ELRA — Application filed out of time — Requirement to attach and aver orders granting leave — Deputy Registrar’s lack of power to grant leave — Jurisdictional effect of limitation periods.
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2 December 2020 |
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Applicant failed to prove sufficient cause or to account for a 94-day delay; revision dismissed.
* Labour law — Condonation — Rule 31 GN 64/2007 — requirement to show sufficient cause and to account for each day of delay.
* Evidence — need for corroboration of claims of custody/remand/bail to support condonation.
* Civil procedure — delays caused by negligence or inaction do not constitute sufficient cause; equitable relief subject to clean hands doctrine.
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1 December 2020 |
| November 2020 |
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Court granted extension to file representative revision, stressing right to be heard and requirement for competent, timely filing.
Extension of time — representative suit — whether sufficient cause shown; right to be heard and natural justice; technical delays v. negligence; requirement to account for each day of delay; illegality as ground for extension must be apparent on the record and pleaded.
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30 November 2020 |
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Employee dismissal held substantively valid for dishonesty but procedurally unfair; six months' compensation awarded.
Labour law – unfair termination – jurisdiction of CMA over unfair dismissal claims; substantive fairness – proof of dishonesty versus gross negligence; procedural fairness – right to be heard and cross-examine; remedies where dismissal is substantively justified but procedurally unfair.
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30 November 2020 |
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Probationary employees cannot claim Part IIIE unfair-termination remedies; CMA award quashed and only statutory benefits ordered.
Employment law – Probationary employees – Part IIIE (unfair termination) remedies not available to probationers; Arbitrator exceeded framed issues by deciding unfair termination suo moto; Retrenchment consultation and representation – union/non-union representation; Award quashed and set aside; Statutory benefits only.
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30 November 2020 |
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A procedurally defective, ambiguous review/extension application was struck as frivolous and abusive; costs awarded against applicant's counsel.
* Labour procedure – Review v. appeal – requirement to file notice of review and follow Rule 27 procedures; improper mixing of review and appeal reliefs creates ambiguity. * Civil procedure – certainty and specificity – applications that are confusing and ambiguous are incompetent. * Abuse of process – frivolous and vexatious applications attract costs even in cost-free labour jurisdiction. * Costs in labour matters – statutory cost-free principle does not bar costs where frivolous/vexatious conduct is proved.
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30 November 2020 |
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Court finds employee was permanent, termination for gross insubordination was justified, and CMA award of 16 months' pay is quashed.
Labour law – employment status – fixed-term vs permanent contract; misconduct – gross insubordination; procedural fairness in disciplinary hearings; review of CMA award; remedy for unfair termination vs statutory terminal benefits.
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30 November 2020 |
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Extension to file revision granted because denial of right to be heard vitiated CMA proceedings.
Labour law – extension of time to file revision – right to be heard (audi alteram partem) – natural justice – CMA proceedings vitiated by denial of hearing – extension granted.
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30 November 2020 |