Automated Summary
Key Facts
ROVVENPEC Resort (appellant) sought to set aside an ex parte award from the Commission for Mediation and Arbitration (CMA) in a labor dispute. Edson Chita Nyondo (respondent) was employed for two months as Hotel Manager and terminated in May 2016. The CMA ruled in favor of Nyondo, but ROVVENPEC claimed they were not properly notified and cited illness as absence reason. The court dismissed the revision application, finding insufficient grounds for overturning the CMA's decision, which correctly determined the termination did not meet unfair dismissal criteria under the Employment and Labour Relations Act, 2004.
Issues
- The court addressed whether the respondent's two-month employment period exempted him from unfair termination provisions under Section 35 of the Employment and Labour Relations Act, 2004, and if the termination procedures under Rule 10 of the Code of Good Practice were followed.
- The court determined whether the applicant's failure to attend the arbitration was justified by claiming illness and not receiving summons, which are necessary grounds for setting aside an ex parte award.
Holdings
- The court dismissed the applicant's revision application as it lacked merit and upheld the Commission's award. The applicant failed to demonstrate sufficient grounds for setting aside the ex parte award, particularly regarding their claim of illness and the employment duration of the respondent.
- The court found the applicant failed to provide evidence of illness to justify non-attendance at the Commission hearing. The applicant's claim of being unaware of the case was rejected, as summons were served to the applicant and its representatives.
- The court confirmed that employees with less than six months of employment are not protected by unfair termination provisions under Section 35 of the Employment and Labour Relations Act, 2004. However, the Commission correctly applied Rule 10 of the Code of Good Practice, which outlines termination procedures for probationary employees, and found the applicant's termination process lacking.
Remedies
- Each party is ordered to bear their own costs, as no costs were awarded to either side.
- The revision application filed by ROVVENPEC Resort was dismissed due to lack of merits, upholding the Commission for Mediation and Arbitration's Award.
Legal Principles
- The court emphasized that the applicant must demonstrate sufficient grounds to set aside the ex parte award, which was not established in this case.
- The court applied Section 35 of the Employment and Labour Relations Act, 2004, which excludes employees with less than six months' service from unfair termination protections.
Precedent Name
- Mbeki Teachers Sacco's V. Zahra Justas Mango
- Efficient International Freight Ltd and Another vs. Office Du the Burundi
Cited Statute
- Employment and Labour Relations (Code of Good Practice) Rules, 2007
- Employment and Labour Relations Act, 2004
Judge Name
A. E. Mwipopo
Passage Text
- The evidence available in the record shows that the applicant failed to prove before the Commission that he was sick as he asserted in his affidavit before the Commission. The applicant alleged that he lost track of the dispute before the Commission because he was sick but nothing in the record shows that he was sick at that particular moment. Also, the evidence available in record did show that the applicant was served with summons to appear which means that if he was sick he had a chance to inform the Court of his sickness at the time he was served with those summons.
- The second ground that the employee was employed for just two months thus he was not covered by the provisions for unfair termination... I agree with the Mediator that the employee under 6 months is not covered by provision for unfair termination... the termination of employee with less than 6 months employment is covered under Rule 10 of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. 42 of 2007.
- Consequently, the revision application is hereby dismissed for want of merits and the Commission Award is upheld.