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Citation
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Judgment date
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| March 2022 |
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Procedural defects in retrenchment (consultation/selection) warrant reduced compensation despite substantive fairness.
Employment law – retrenchment – procedural fairness – requirement to disclose information and consult unions/employee representatives; selection criteria and timing of consultation; computation of severance/leave pay; entitlement to 13th month pay; assessment of compensation for procedural unfairness.
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31 March 2022 |
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Failure to swear witnesses at the CMA vitiates proceedings, requiring the award to be nullified and retried before another arbitrator.
* Labour law – Commission for Mediation and Arbitration – evidence must be given under oath or affirmation – mandatory requirement under Rule 25(1) GN No.67/2007 and Oaths Act.
* Evidence – failure to administer oath – omission vitiates proceedings and renders evidence valueless.
* Remedy – nullification of CMA proceedings and remittal for retrial before another arbitrator.
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31 March 2022 |
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A revision filed after the six-week ELRA deadline is time-barred; court struck it out but granted leave to refile.
* Labour law – revision – time limits – section 91(1)(a) ELRA – six-week filing period; * Civil procedure – electronic filing – Judicature and Application of Laws (Electronic Filing) Rules, 2018; * Registry errors – wrong-registry e-filing does not cure statutory delay absent extension; * Remedy for late filing – dismissal generally, but court may strike out with leave to refile in interests of justice.
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31 March 2022 |
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Employer failed to prove employment terms; the applicant was unfairly terminated and awarded notice, salary and certificate.
Employment law – unfair termination – onus to prove termination and employment terms – employer’s duty to keep employee records (ELRA s.15) – proof of remuneration – entitlement to notice and certificate of service; unpleaded benefits not awarded.
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31 March 2022 |
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Silence to renewal notice does not automatically renew fixed‑term contracts; power of attorney did not permit testimonial substitution.
Labour law – fixed‑term contracts – renewal clause interpretation – silence does not amount to automatic renewal; Evidence — competency and admissibility — power of attorney does not authorise testimony for another; Pleadings — party bound by pleaded cause of action; Employment restructuring — employer’s legitimate reorganisation may justify altered contract terms.
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31 March 2022 |
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CMA award quashed for improper admission of electronic evidence and denial of the applicant's right to be heard; retrial ordered.
Labour law – CMA award – admission of electronic evidence – Electronic Transactions Act – right to be heard – apparent bias – procedural irregularity – nullification of proceedings – trial de novo.
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31 March 2022 |
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Retrenchment found substantively arguable but procedurally flawed; CMA award partially revised and reduced.
Labour law – retrenchment – substantive grounds (economic/COVID‑19) versus procedural fairness; consultation and notice requirements; admissibility and sufficiency of minutes/attendance as proof of consultation; assessment and revision of CMA compensation awards (meal allowance disallowed).
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30 March 2022 |
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Revision allowed where respondent became an independent contractor with a third party, so applicant not liable and CMA award quashed.
* Labour law – constructive dismissal – whether employee became an independent contractor with third party and whether constructive termination established.
* Civil procedure – condonation – discretionary grant of extension of time by CMA and review on revision.
* Evidence/procedure – improper recalling of a concluded witness without ruling; expungement of recalled evidence.
* Contract law/employment – secondment/independent contractor clauses; third-party payment arrangements and necessity of joining third party to prove non-payment.
* Relief – High Court quashes CMA award where essential party and contractual facts were not properly determined.
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30 March 2022 |
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30 March 2022 |
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Applicant’s late, unsubstantiated reasons (illness and late judgment supply) did not justify extension of time to file a notice of appeal.
Extension of time to file notice of appeal; Court of Appeal Rules r.83(2) – thirty-day rule; submissions are not evidence; annexures must be to affidavit; medical proof not admissible when only attached to submissions; insufficient reasons for delay; application dismissed.
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30 March 2022 |
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Court found CMA lacked jurisdiction because the claimant was employed by the foreign parent, quashing the award.
Labour law — Jurisdiction of CMA — employment by foreign parent vs local entity; contractual forum/choice issues; resignation vs unfair termination; admissibility and analysis of documentary evidence; procedural compliance — new grounds in submissions and right to fair hearing.
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30 March 2022 |
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Court dismissed revision: dismissal was substantively and procedurally fair; no formal criminal charge barred disciplinary action.
Employment law; disciplinary dismissal; substantive fairness — balance of probabilities; procedural fairness — notice, representation, impartial panel, appeal; s.37(5) ELRA (inapplicable absent formal charge); s.102 ELRA — limited criminal jurisdiction.
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29 March 2022 |
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Failure to cite enabling statutory provisions and missing Section 91 time-limit renders the revision incompetent and time-barred.
Labour law – revision of CMA award; enabling provisions – Section 91 and Section 94, Employment and Labour Relations Act; time limit – six weeks (42 days) from service; mis-citation/non-citation of statutory provisions renders application incompetent; jurisdiction – striking out for being time-barred and improperly before the Court.
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29 March 2022 |
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CMA award quashed because termination dispute was filed after the 30‑day limit without condonation.
Labour law — limitation for termination disputes — Rule 10(1) GN No.64/2007 (30 days) — filing deadline and condonation; jurisdiction — effect of time‑bar on CMA jurisdiction; evidentiary weight of tribunal record; procedural irregularity — improper tendering/endorsement of exhibits; remedy — nullity and quashing of award when tribunal lacks jurisdiction.
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29 March 2022 |
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29 March 2022 |
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Extension of time granted for leave application due to technical delay; alleged illegality not obvious on record.
Extension of time – Section 11(1) Appellate Jurisdiction Act; technical delay – time lost prosecuting incompetent application; illegality – must be obvious on face of record to justify extension; promptness after supply of ruling; requirement of leave to appeal in land matters under section 47(2) LDCA.
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29 March 2022 |
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Dismissal upheld as substantively and procedurally fair for post‑closure, unauthorized solicitation using employer facilities.
Labour law – Unfair dismissal – Substantive and procedural fairness; trade union representatives’ rights under section 60(3) limited by reasonable conditions; employer’s burden to prove misconduct on balance of probabilities; use of employer communication systems without authorization amounting to abuse of office.
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28 March 2022 |
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Revision application struck out for defective affidavit jurat naming the wrong deponent; leave granted to refile within seven days.
Labour Court procedure – Rule 24(1) and (3) GN No.106/2007 – notice of application must be supported by an affidavit; jurat of attestation – incorrect deponent named renders affidavit defective and application incompetent; strike out with leave to refile.
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28 March 2022 |
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Unfair termination claim held premature where resignation was evidenced and termination was not proved.
Employment law – unfair termination – claim premature where resignation—not proven termination—was evidenced; burden of proof on alleging party; CMA jurisdiction confined to pleaded reliefs.
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28 March 2022 |
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Probationary employees with under six months' service cannot bring unfair termination claims under section 35 ELRA; CMA lacked jurisdiction.
Employment law – probationary employment – application of section 35 ELRA excluding employees with less than six months' service from unfair termination claims – confirmation of employment not automatic – binding effect of Court of Appeal authority.
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28 March 2022 |
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Procedural bias by a disciplinary chair justified compensation, not re‑engagement, where dismissal was substantively fair.
* Employment law – Disciplinary procedures – Rule 13(4) Code – Chairperson must not have been involved in circumstances giving rise to the case; nemo judex. * Remedy for procedural unfairness – Re‑engagement inappropriate where dismissal is substantively fair; compensation under s.40(1)(c) proper. * Labour Court powers – Revising CMA award and substituting appropriate relief.
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28 March 2022 |
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Applicant failed to show sufficient cause or diligence; election-related network problems did not justify extension of time.
Labour procedure — extension of time under Rule 56(1) LCR — discretion exercised on sufficient cause (promptness, explanation, diligence) — network failure during elections not automatically excusing delay — failure to explain interluding delay fatal to extension application.
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28 March 2022 |
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Probationary employee unlawfully terminated without Rule 10 safeguards; CMA's eight-month award reduced to three months' salary.
Labour law – Probationary employment – Termination procedures under Rule 10 GN.42/2007 – Failure to notify performance concerns, failure to afford opportunity to respond or improve – Unfair termination; Compensation – appropriate quantum for probationary employee – reduction of award.
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28 March 2022 |
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Specific-task short-term contracts expiring on notice preclude unfair termination remedies and related compensation.
Labour law — specific-task/short-term contracts; conversion to permanent employment; legitimate expectation of renewal; unfair termination (s.35 Cap.366 R.E.2019) — advance notice of non‑renewal; review and quashing of CMA award for improper compensation.
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28 March 2022 |
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A CMA referral filed by a non-party and refiled without condonation is incompetent and renders the award void for lack of jurisdiction.
* Labour law – competence of referral – CMA F1 signed by non-party (legal officer) is incompetent and should be struck out.
* Jurisdiction – time limits and condonation – re-filing without condonation after filing period renders proceedings incompetent.
* Procedure – arbitrator’s powers – striking out incompetent referral vs curing/amending by ordering refile.
* Relief – awards made in proceedings where CMA lacked jurisdiction are null and void.
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28 March 2022 |
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Applicant failed to prove lawful retrenchment; unfair termination compensation upheld but reduced for excess awards.
Labour law – retrenchment procedure (s.38 ELRA) – employer’s burden to prove fairness (s.39) – compensation for unfair termination additive to statutory payments (s.40) – limits on awards to pleaded claims; impropriety of considering unpleaded issues (sole breadwinner).
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25 March 2022 |
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Employer failed to follow statutory retrenchment procedure; terminations unfair and compensation adjusted on revision.
Labour law — retrenchment procedure — Section 38 (notice, disclosure, consultation) — burden on employer to prove fairness; Section 40 compensation in addition to statutory exit payments; appellate variation where CMA awards exceed pleaded claims or rely on unpleaded issues.
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25 March 2022 |
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Fixed-term employee unfairly retrenched where employer failed to prove and follow statutory retrenchment procedures; award revised.
Employment law – retrenchment – validity and proof of operational requirements; consultation and disclosure obligations under section 38 ELRA and GN 42/2007; late filing of respondent's pleadings – expungement and consequences; revision of CMA award for unfair termination.
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25 March 2022 |
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Fixed-term employment contracts cannot sustain unfair-termination remedies; written contract governs despite pronoun errors.
Employment law – fixed-term (specified) contracts v. unspecified-term contracts – entitlement to unfair-termination remedies; Evidence – primary weight of written contract; Interpretation – gender pronoun not fatal to contract validity; Labour procedure – review of CMA award for misapplication of law and failure to assess written evidence.
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25 March 2022 |
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25 March 2022 |
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Application for revision dismissed for filing written submissions late without leave, equating to failure to prosecute.
Labour procedure — Revision application — Failure to file written submissions within time ordered by court — Orders to file submissions form part of hearing — Late submissions without leave are disregarded — Failure to prosecute/nonappearance — Dismissal as sanction.
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25 March 2022 |
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Termination found substantively and procedurally unfair; compensation, repatriation and subsistence awarded, reinstatement denied.
Employment law - unfair dismissal; substantive fairness (burden on employer); procedural fairness (right to be heard; notice requirements); remedies - reinstatement vs compensation; calculation of repatriation and subsistence; setting aside allowances lacking evidential support.
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24 March 2022 |
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Court granted condonation where medical evidence credibly explained 42-day delay, remitting dispute to CMA for hearing.
Labour law — condonation of late referral to arbitration — sufficiency of medical evidence to explain delay — standard for establishing 'sufficient cause' — remittal to CMA for hearing on merits.
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24 March 2022 |
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Retrenchment must be employer-initiated; employee conduct demonstrating handover and absence amounted to resignation.
Labour law — Retrenchment procedure — Retrenchment must be employer-initiated — Employee cannot 'opt' to trigger retrenchment; resignation by conduct — handing over duties and ceasing attendance — evidential effect; statutory retrenchment consultation under section 38 and GN No. 42/2007.
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23 March 2022 |
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Court quashed CMA restoration order for lack of evidence of sufficient cause and for arbitrator raising a new issue without hearing parties.
Labour law – restoration of proceedings dismissed for want of prosecution – sufficiency of cause for non-appearance; Procedural fairness – raising issues suo motu – requirement to place issues on record and afford parties opportunity to be heard; Civil procedure – improper preliminary objection raised in submissions without leave.
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23 March 2022 |
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A fixed-term employment contract ends on expiry absent proven termination or legitimate expectation of renewal.
* Employment law – Fixed-term contracts – Expiry versus termination – A fixed-term contract ends on its agreed expiry absent proven termination or legitimate expectation to renew.
* Labour procedure – Scope of CMA issues – Arbitrator decides issues actually framed; no obligation to decide unframed breach claims.
* Evidence – Written submissions are not evidence; awards must be based on evidence on record.
* Legitimate expectation – Requires evidential basis; prior warning/underperformance undermines expectation of renewal.
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22 March 2022 |
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Court dismissed revision and upheld CMA award, finding dismissal unfair and compensation properly awarded.
* Employment law – unfair dismissal – substantive and procedural fairness – disciplinary hearing minutes and incapacity due to illness as defence; * Evidence – evaluation of witness testimony and documentary exhibits in disciplinary processes; * Remedies – compensation, notice in lieu and severance where dismissal found unfair; * Review – scope of court’s revision of CMA awards.
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22 March 2022 |
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Revision dismissed as time‑barred and meritless for failure to justify counsel's non‑appearance.
Labour law — Revision under s.91(1)(a) ELRA — Time limit for filing revision (six weeks) — Service/collection of award starts time running — Ex parte proceedings — Good cause for non‑appearance — Setting aside ex parte award — Procedural compliance and evidential sufficiency.
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22 March 2022 |
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Sickness and inability to afford a lawyer did not establish sufficient grounds for condonation of delay.
Labour law – Condonation of delay – Rule 11(3) GN No.64/2007 – requirement to account for each day of delay – sickness and seeking legal advice – adequacy of medical records and legal-service evidence.
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21 March 2022 |
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Court refused to reinterpret a clear CMA reinstatement order; applicant must refile competent execution to quantify arrears.
Labour law — Enforcement of CMA awards — Interpretation of arbitral awards — Reinstatement without loss of remuneration (s.40(1)(a) ELRA) — Quantification of arrears — Competence of execution proceedings against government — Requirement to refile proper execution application.
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21 March 2022 |
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Extension application struck out because the supporting affidavit was incurably defective and contradicted its annexures.
Affidavit evidence — material contradictions between affidavit and annexures — affidavit must be truthful — incurably defective affidavit renders supporting application incompetent — application for extension struck out.
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21 March 2022 |
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Extension application struck out due to supporting affidavit's contradictions, untruths, and failure to annex the relevant court order.
* Civil procedure — Application for extension of time — Supporting affidavit must state true, consistent facts — Contradictory statements and inconsistencies with annexures render an affidavit incurably defective — Failure to annex a relied-upon court order undermines evidential basis — Incompetent application struck out.
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21 March 2022 |
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Failure to renew a fixed‑term contract can be unfair termination if employees had an objective reasonable expectation of renewal.
Employment law – fixed‑term contracts – reasonable expectation of renewal; unfair termination; burden of proof in unfair termination claims; distinction between notice of termination and notice of non‑renewal; admissibility of electronic/documentary evidence in labour proceedings.
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18 March 2022 |
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CMA has jurisdiction over public corporation employee; improper award of prolonged subsistence and retirement benefits reversed.
Labour law – jurisdiction of CMA over employees of public corporations; distinction between public corporation and public service office; application of ELRA; statutory repatriation and subsistence allowance (s.43 ELRA); limits of collective agreement terms; entitlement to retirement versus termination benefits; compensation for unexpired period of fixed‑term contract renewed by default.
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18 March 2022 |
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Fixed-term contract expired by written terms; evidence did not establish reasonable expectation or automatic renewal.
* Employment law – fixed-term contract – requirement for written extension; interpretation of contractual clause limiting renewal.
* Employment law – unfair termination – reasonable expectation of renewal under s.36(a)(iii) ELRA.
* Labour practice – automatic renewal by default – Rule 4(3) GN No.42 of 2007 requires proof of continued performance.
* Evidence – attendance at workplace alone insufficient; claimant must prove assignment and performance of duties.
* Procedural – arbitrator’s findings supported by witness evidence; no extraneous facts introduced.
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18 March 2022 |
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High Court grants extension to file notice of appeal; application for memorandum extension premature without leave to appeal.
Appellate procedure – extension of time under s.11(1) AJA to lodge notice of appeal; competency of application for extension to file memorandum of appeal where appeal originates from District Land and Housing Tribunal – requirement to seek leave to appeal; sufficient cause—age, lack of legal representation and ignorance of procedure as grounds for extension.
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18 March 2022 |
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The applicant failed to prove the respondent's negligence; termination was unfair and the CMA award stands.
* Employment law – unfair termination – Section 37(2) Employment and Labour Relations Act – burden on employer to prove valid reason related to conduct and fair procedure; failure to prove duty and causal link to loss renders dismissal unfair.
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18 March 2022 |
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17 March 2022 |
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16 March 2022 |
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16 March 2022 |