Television and radio personality Tinopona Katsande will have to wait a little longer to have her labour dispute with ZiFM Stereo resolved after the radio station appealed to the Supreme Court against an arbitral award to reinstate her.
The arbitrator also ruled that in the event reinstatement was incompatible Katsande was entitled to a remedy of damages for unlawful dismissal. Katsande who is known to her legion of fans as "DJ Tin Tin" worked as ZiFM Breakfast show hostess before she was fired last year over her leaked sex tape.
She successfully sued ZiFM before an arbitrator who ruled that she was unlawfully dismissed from employment for misconduct allegedly arising from the leaked pornographic video.
Now ZiFM has approached the Supreme Court challenging the arbitrator's decision arguing that Matsikidze erred in law and misdirected himself finding that the ZiFM could not terminated a fixed term contract of employment on notice.
"The arbitrator also erred in finding that the termination of a fixed term contract on notice in terms of section 6 of the Labour Act Amendment Number 7 of 2005 was unlawful and unfair," said ZiFM in its appeal papers.
In this case, ZiFM wants the superior court to set aside the arbitral award.
But Katsande's lawyer Nunudzai Mitchell Masunda of Scanlen and Holderness is opposing the appeal arguing that it is "frivolous and vexatious".
She argued that the arbitrator correctly interpreted the contract of employment between the parties which contract she said did not provide for termination on notice by the employer.
"The contracted specifically excluded termination on notice by the employer. Further the contract limited the occasion upon which notice could be given. It is common cause that the appellant sought to give retrospective notice which at law is incurably flawed. The appellant bulldozed the respondent out of her employment," said Masunda.
Arbitrator and labour law expert Mr Rodgers Matsikidze ruled that Katsande was unfairly dismissed because at law the employer cannot terminate Katsande on notice, which was not expressly provided for in the contract itself.
He also ruled that although he agreed that Katsande's conduct was morally wrong, he said the law seemed to have a lacuna on issues that later surface in one's employment.
At the time of the hearing before the arbitrator, ZiFM was represented by Mr Tichaona Muhonde who has since been dropped for Mr Motsi Sinyoro of Sinyoro and Partners for the appeal.
Mr Muhonde told the tribunal that he advised ZiFM that they had adopted a wrong procedure and as such the dismissal was unlawful.
After ZiFM was advised by its lawyer that they could not fire her, Katsande was then reinstated without loss of any benefits and she was given three months notice until December 14, 2013, when she was eventually fired.
Before the pictures of the sex tape were published by H-Metro, the radio hostess raised alarm and apologised to Zimbabwe.
The pictures published by H-Metro showed Katsande in different intimate and compromising positions with her unidentified partner and were viral on social media. The sex tape went viral and everyone who wanted to watch it got it either through WhatsApp or downloaded it on other websites. Most people who watched it described the x-rated video as the 'most boring sex tape'.
"Ko Tino wacho zvaari danda chairo nhai," said one fan who commented on My Zimbabwe News when we published the article.