NMB Bank Limited v Shepherd Goto

The respondent was employed as a Senior Security Manager by NMB Bank (applicant) and was dismissed following a disciplinary hearing. He appealed to an arbitrator who ordered reinstatement or alternatively damages of $59,546.24 in lieu of reinstatement. The applicant appealed to the Labour Court. The award was registered by the High Court on 5 February 2013. The respondent issued a writ of execution, and the applicant obtained a stay of execution on 14 March 2013 pending the appeal. The respondent successfully applied for rescission of the stay order, and the applicant then paid $63,110.55 under protest in full settlement. Subsequently, the Labour Court heard the appeal and confirmed the respondent's dismissal, effectively setting aside the arbitral award. The applicant then sought a refund of the money paid. The respondent filed an application for leave to appeal against the Labour Court judgment, which was still pending, and opposed the refund application arguing it was premature.

• Whether the filing of an application for leave to appeal against a decision of the Labour Court has the effect of suspending the operation of the judgment sought to be appealed against
• Whether the applicant is entitled to restitution of monies paid to the respondent pursuant to an arbitral award that was subsequently set aside by the Labour Court
• Whether a pending application for leave to appeal bars the court from granting an order for refund of money paid

The court ordered: (a) The respondent to pay the applicant the sum of US$63,110.55 being a refund of money paid under protest pursuant to a writ of execution; (b) The respondent to pay interest on the judgment debt at the prescribed rate from 8 August 2013; (c) The respondent to pay collection commission on the judgment debt calculated in terms of the applicable Law Society General Tariff for Fees.

An application for leave to appeal against a decision of the Labour Court does not have the effect of suspending the operation of the judgment sought to be appealed against. The right of appeal from the Labour Court is a limited right requiring leave under section 92F of the Labour Act [Chapter 28:01]. Until leave to appeal is granted and a notice of appeal is filed, there is no appeal pending in the Supreme Court. The filing of an application for leave to appeal merely expresses an intention to appeal and does not constitute the noting of an appeal. Where money has been paid pursuant to a judgment that is subsequently set aside on appeal, and there is no valid appeal pending against the order setting aside the original judgment, the party who paid the money is entitled to restitution to prevent unjust enrichment.

The court noted that Section 92E(2) of the Labour Act provides that an appeal to the Labour Court does not have the effect of suspending the determination or decision appealed against, distinguishing appeals to the Labour Court from the general civil rule that appeals suspend orders. The court observed that the purpose of requiring litigants to apply for leave to appeal is to streamline appeals, ensuring that only appeals on points of law are permissible. The court commented that the respondent's approach of proceeding with execution after the stay order was rescinded was "above board" at that stage, as the respondent was entitled to execute on the award before the Labour Court's final determination.

This case clarifies important principles regarding labour appeals in Zimbabwe, particularly the distinction between filing an application for leave to appeal and actually noting an appeal. It establishes that a mere application for leave to appeal from the Labour Court to the Supreme Court has no suspensive effect on the judgment appealed against. The case reinforces the three-stage process for Labour Court appeals: (1) obtaining leave to appeal, (2) filing a notice of appeal, and (3) only then is the Supreme Court seized with the matter. The judgment is significant for understanding when restitution is appropriate where money has been paid pursuant to a judgment that is subsequently overturned, and clarifies that pending applications for leave to appeal do not bar courts from addressing unjust enrichment claims.