|
Citation
|
Judgment date
|
| August 2023 |
|
|
Defective CMA referral, unmediated issues and reliance on unadmitted documents rendered the arbitration award a nullity.
Labour law – competence of referral – CMA F1 pleaded alternatively (termination/breach) and filling of incorrect part renders referral defective and proceedings a nullity. Labour law – mediation mandatory under Rule 4(2); arbitrator cannot hear issues that were not mediated. Civil procedure – arbitrator must adjudicate within scope of certificate of non-settlement (CMA F6) and pleadings. Evidence – consideration of documents not tendered or admitted is fatal; tribunal must decide on evidence properly adduced. Procedure – failure to determine a preliminary objection on competence/jurisdiction renders subsequent proceedings null and void.
|
30 August 2023 |
|
Termination was substantively and procedurally unfair where dismissal lacked required managerial approval and relied on inconsistent evidence.
Employment law — unfair dismissal — substantive and procedural fairness; suspension as interim measure; insubordination — requirement of lawful and reasonable instruction; authority to terminate — employees' handbook and necessity of Managing Director's approval; burden of proof on employer.
|
29 August 2023 |
|
Applicants who accepted a retrenchment package before referring a dispute were estopped from challenging fairness, despite the arbitrator's incorrect view on section 38.
Labour law – Retrenchment – Section 38 E.L.R.A. – Mandatory compliance with all subsections; employer cannot apply provisions selectively. Consultation and disclosure – Minutes admissible; employer’s disclosure need not always include full annual reports. Evidence – Foundation required for documentary exhibits; burden under section 110 Evidence Act to disprove signatures. Estoppel – Acceptance of retrenchment package before referral bars subsequent challenge of fairness.
|
23 August 2023 |
|
Extension of time denied where applicant failed to account for delay and alleged illegality was not apparent on the record.
Labour law – extension of time to file notice of appeal; requirement to account for each day of delay; technical delay from pursuing a struck-out revision; illegality must be apparent on the face of the record to warrant condonation; forum shopping and diligence in prosecuting appeals.
|
22 August 2023 |
|
An application was struck out as incompetent because the requisite CMA Form No.10 was not validly filed without prior leave after time expired.
Labour law – extension of time – filing of notice of intention to seek revision (CMA Form No.10) – validity of filing out of time without prior leave. Civil procedure – competence of application – striking out for incompetence where prerequisite filing was invalid. Procedural law – functus officio – prior jurisdictional ruling does not preclude fresh determination of validity of a specific filing. Computation of time – public holiday exception for filing deadlines.
|
18 August 2023 |
|
Respondent who accepted and retained retrenchment package is estopped from contesting the fairness of restructuring dismissal.
Employment law – retrenchment for operational requirements – restructuring after bank merger – substantive fairness (s37(2)(ii)); consultation and procedural fairness (s38, Rule 23). Evidence – documentary proof (structure charts, emails, consultation minutes, bank transfer) substantiating retrenchment and payment. Estoppel – acceptance and use of retrenchment package bars subsequent challenge to fairness.
|
18 August 2023 |
|
CMA lacks jurisdiction over disputes of public servants under Section 32A; internal Public Service Act remedies must be exhausted.
Labour law – jurisdiction – CMA lacks jurisdiction to entertain disputes of public servants post-2016 amendment (Section 32A). Public Service Act – definition of public servant – operational service within public service. Exhaustion of internal remedies – mandatory under Section 32A before approaching CMA. Procedural – parties are bound by issues pleaded at trial; court confined review to jurisdictional issue.
|
16 August 2023 |
|
Award set aside where mediator altered the pleaded dispute without amendment; mediation is compulsory and tribunal bound by pleadings.
Labour law – compulsory mediation in CMA disputes – mediator and arbitrator bound by parties' pleadings; mediator cannot change dispute without amendment. Pleadings – defective CMA F1 renders proceedings incompetent. Procedure – failure to undergo compulsory mediation vitiates subsequent arbitration award.
|
16 August 2023 |
|
Specific-task employment ended with project completion; retrenchment raised at revision was inadmissible and dismissal of application affirmed.
Employment law – specific-task contracts v. unspecified-period contracts; burden to prove reasons for termination; inadmissibility of new factual grounds (retrenchment) on revision; non est factum defence; notice and statutory termination procedures under Employment and Labour Relations Act.
|
15 August 2023 |
|
An arbitrator’s reliance on an untendered affidavit vitiated the CMA award, leading to nullification and a trial de novo.
Employment law – unfair termination – whether termination was by agreement or unilateral termination. Evidence – admissibility – documents in file but not tendered cannot be considered as evidence. Fair hearing – reliance on untendered affidavit may violate the right to be heard and vitiate proceedings. Remedies – procedural irregularity may lead to nullification of award and ordering of trial de novo.
|
15 August 2023 |
|
Whether mediators have jurisdiction to determine condonation and if conflicting High Court decisions should be certified to the Court of Appeal.
Labour law – mediation vs arbitration – jurisdiction of mediators to grant condonation (extension of time); Certification of points of law under s.58 LIA and Rule 53 Labour Court Rules; Distinction between ratio decidendi and obiter dicta when identifying conflicting decisions.
|
15 August 2023 |
|
Extension denied where applicants executed the award, failed to account for delay and abused court process.
Labour law – extension of time – requirement to show good cause and account for each day of delay; execution of award – effect on right to challenge award; abuse of court process; inadmissibility of oral submissions in place of affidavit evidence.
|
14 August 2023 |
|
Applicants failed to account for delay or provide admissible evidence; extension of time to file review was dismissed.
Labour procedure – extension of time to file review – requirement to account for each day of delay; competence and form of Notice of Application; mis‑citation of provisions; Rule 27 notice of review as precondition; admissibility of allegations and hearsay; representative suit and scope of representative’s authority.
|
11 August 2023 |
|
Extension of time to file revision denied for unexplained delay, defective affidavit and non‑apparent illegality.
Labour law – Extension of time to file revision – requirement to show good cause and account for each day of delay; Civil procedure – Illegality as ground for extension – must be apparent on the face of the record; Advocacy – negligence, misinterpretation or sickness of counsel not sufficient grounds without supporting affidavits; Evidence – affidavits must disclose identities and supporting deponents; hearsay statements have no evidential value.
|
11 August 2023 |
|
Applicant refused notices and hearings; court held he deprived himself of the right to be heard and dismissed the revision.
Labour law – termination for absenteeism – service of disciplinary notices – refusal to accept service and attendance – right to be heard; evidentiary rule that issues not raised in CMA evidence cannot be considered on revision.
|
11 August 2023 |
|
A mediator lacks jurisdiction to grant condonation; such applications must be determined by an arbitrator.
Labour law – CMA procedure – Application for condonation involves legal issues and judicial discretion; mediators lack jurisdiction to determine condonation. Mediation – mediator's role limited to assisting settlement; confidentiality and party confidence must be preserved. Remedy – decision by mediator granting condonation nullified; matter remitted to arbitrator for de novo hearing.
|
11 August 2023 |
|
CMA lacked jurisdiction where termination dispute was filed after 30 days without a condonation application.
Labour law – Limitation – filing of termination disputes within 30 days under Rule 10(1), GN. No. 64/2007; condonation required for late filing – absence of CMA F2/affidavit deprives CMA of jurisdiction; CMA proceedings and award nullified for lack of jurisdiction.
|
11 August 2023 |
|
|
11 August 2023 |
|
Termination for alleged poor performance was substantively and procedurally unfair; remedies reduced to 20 months' compensation.
Labour law — Termination for poor performance — Necessity of identifiable, reasonable and known performance standard (GN. No. 42/2007 Rules 16–17) — Mandatory investigation, warning and opportunity to improve (Rule 18 and Guidelines) — Natural justice breach where Board pre-decides and hears its own case — Remedies under s.40 ELRA are disjunctive; cannot award reinstatement and compensation conjunctively without complying with s.40(2)–(3).
|
11 August 2023 |
|
Reassignment without reasons and reliance on unadmitted exhibits rendered the CMA award a nullity; rehearing ordered.
Labour arbitration — reassignment of arbitrator without recorded reasons — confidentiality of mediation — improper admission of exhibits — right to be heard — nullity of proceedings — rehearing de novo.
|
9 August 2023 |
|
Termination was substantively justified but procedurally unfair; four months' compensation awarded.
Employment law – unfair termination – substantive v procedural fairness; employer bears burden under s.39 ELRA. Evidence/estoppel – signed hearing form and in-court admissions amount to admission of misconduct. Procedure – failure to serve investigation report violates Rule 13 GN No.42/2007 and employer's disciplinary manual; improperly constituted disciplinary committee. Remedy – where substantive fairness established but procedural defects exist, court may award compensation below statutory 12 months (s.40(1)(c)), here four months' salary.
|
7 August 2023 |
|
Failure to file mandatory CMA Form No.10 under Regulation 34(1) renders a revision application incompetent.
Labour law – Revision procedure – Regulation 34(1) G.N. No.47/2017 – Mandatory notice of intention to seek revision (CMA Form No.10); Failure to file/serve notice – renders revision incompetent; Overriding objective cannot cure breach of important procedural requirements; CMA Form No.10 – both administrative and judicial functions; Striking out for non‑compliance.
|
4 August 2023 |
|
Technical delay from an incompetent appeal can justify extension of time despite advocate negligence.
Labour law – extension of time to file notice of appeal – Rule 83(2) Court of Appeal Rules; technical delay where an originally lodged appeal is found incompetent; counsel negligence versus applicant's right to appeal; application of Lyamuya principles to determine good cause.
|
4 August 2023 |