Alois Chidzvondo v Innsor Africa Ltd t/a Chicken Inn

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/16/2016
HARARE, 24 MARCH 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/16/2016

HARARE, 24 MARCH 2016			     	    CASE NO. LC/MS/55/16

AND 13 MAY 2016

In the matter between:-

ALOIS CHIDZVONDO				 			Appellant

And

INNSCOR AFRICA LTD t/a CHICKEN INN				Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr E. Madzore (Unionist)

For Respondent	Mr B. Taruvinga (Human Resources Manager)

HOVE, J:

At the hearing of this matter, preliminary issues were raised by both parties it is this court’s intention to deal with the issue first of whether or not the appeal raises any questions of law.

The respondent stated that no points of law were raised in the grounds of appeal.

He referred the court to the cases of

ZOU v Gedian Magaramombe LC/H/57/2011

Where he said it was held that the appeal ought to have been based on points of law.

He relied on the provisions of section 98 (10) of the Labour Act [Chapter 28:01] (the labour act) and again referred the court to two Supreme Court cases of

Mutsuta v Cargar P/L SC 47/09

Sable Chemicals v Easterbrooke SC 18/2010

He submitted that since there had not been any compliance with the provisions of the Labour act, the appeal should fail.

The appellant submitted that the court can hear appeals premised on questions of fact if there are gross misdirections on the fact as that would constitute misdirections on points of law.  Reference was made to the case of National Foods Limited v Stewart Mugadza SC 105/95 and also the case of Mpumelo v Berger Points (Pvt) Ltd 1999 (2) ZLR 146.

The grounds of appeal under consideration are two. While the first ground of appeal alleges gross misdirections on the facts the second does not.

The second ground of appeal therefore raises points of facts and fails to allege that there was a gross misdirection on the facts therefore it does not raise any point of law and is improperly before the court.

See Sable Chemical case (supra)

The first ground of appeal is properly before the court.  The second ground of appeal is struck off as being improperly before the court.

The second preliminary point raised was raised by the appellant and it is that the notice of response was filed out of time by 4 days.  The respondent explained that delays were caused by the fact that process was coming to Masvingo then being referred to their Head Office in Harare and then forwarded for filing in Gweru.  He submitted that labour matters should not be resolved on technical issues and asked the court to condone any failure to comply.  The court considered the explanation to be a reasonable one and decided to condone the failure to comply with the rules of court.  The respondent is however warned that they should always ensure that there is compliance with the rules of court.

The second preliminary point raised was raised by the respondent that the appeal itself was out of time.  The award was served on 7 October 2015 and the appeal was noted on 11 November 2015 and this was outside the 21 days allowed by the court.

A perusal of the file shows that the award was handed down on 7 October 2015 and the appeal was filed on 11 November 2015.  This is clearly outside the prescribed time.  But it was argued and submitted that the award was handed down in Harare on 7th November 2015 and it was posted to the applicant.  It is not true therefore that the appellant got to know of the award on the 7th.  In view of this explanation, it cannot be said with any degree of certainty that the appeal was noted out of time.  The preliminary point must therefore fail.

The appeal must therefore proceed to be argued on the merits. But it is only on the basis of ground of appeal number one which was held to be properly before the court.

The ground of appeal is long and not a proper ground of appeal.  It does not set out clearly and specifically that which the appellant is attacking in the judgment.  The general arguments such as outlined in grounds of appeal 1, 1.1, 1.2 and 1.3 fail to point out where the arbitrator erred it appears to be a generalized attack on the factual findings.

The court will be well within its rights to dismiss the generalized ground of appeal as not being good enough.  See the cases of

S v Mc Nab 1986 (2) ZLR 280

R v Emerson & Ors 1958 (1) SA 442

In casu however because the appellant is not represented by a legal practitioner, I am prepared in the interest of justice to bend over backwards and still consider the issues raised.

The first ground of appeal states that there was no evidence placed before the arbitrator to warrant him rejecting the appellant’s version and preferring that of witness.

The facts of the matter are that the appellant was employed by the respondent.  On the relevant date the appellant was on night shift.  He left work after a hand over take over with the day shift.  The day operations manager arrived at work around 8 am.  Appellant had left at 7 am.  She inspected the machines and found that the grill was not working.  She called one S. Chitago of Mavambo electricals to come and repair the faults.

The said Chitago found that the screws to the flat top were removed and the grill was switched off from the power supply.  The cable of the thermostat was cut.  He told the operations manager that someone had vandalized the Grill.  The Grill is used by the respondent to make chicken burgers for sale at respondent’s outlet.

Chitago has the contract to repair all faults of respondent’s machines. Chitago then told the operations manager that one of the respondent’s employees had earlier approached him and offered to vandalize the Grill because

The company, respondent, was not paying incentives, and

The company was also paying low salaries.

The plan was that the employee would vandalize the grill and this would ensure that Chitago would be constantly called for repairs.  So this would be in a way, a way of creating constant work for Chitago.  He would be paid more due to the constant calls and he would give the appellant a “cut” for having vandalized the machines.

The manager asked for the identity of the employee. Chitago said he knew no names but could identify the person. The manager recalled all the night shift workers.  Then Chitago identified the appellant.

Needless to say, appellant was then charged, was found guilty and was dismissed.  He appealed.  The arbitrator who later dealt with the matter also found that it was probable that the appellant had indeed deliberately vandalized the grill and dismissed his appeal.

He appealed to this court and denies the allegations.  He submitted that the arbitrator misdirected himself when he accepted the witnesses (Chitago’s) evidence over his denials.  He argued that there was no explanation as to why Chitago did not immediately report him.  Why did he only report after the grill was down and not before.  He submitted that Chitago was only protecting his reputation by blaming an imagined vandalizer, when it was his workmanship that was questionable.

Finally he said since Chitago had (according to his evidence) refused to accede to the alleged plan, why would he (the appellant) have vandalized the grill knowing that Chitago was not going to give him the “cut”.

The evidence by Chitago was well corroborated by the nature of the damage to the grill.  It was clear that someone had deliberately disconnected the grill to the source of power and that someone had unscrewed the flat top.  It was also clear that the thermostat was cut.  The nature of the damage was therefore not a fault but someone had deliberately caused the damage.

Mr Chitago has no motive to create a false story against the appellant.  I’m convinced that there was no gross irrationality in the manner the arbitrator decided the facts of the matter.  Maybe it is worth pointing out that the standard of proof in a civil matter is much less than that in a criminal court.  The appellants’ representative referred the court to criminal case authorities but the standard of proof differs.

In civil matters, it is trite law that in general, in finding facts and making inferences, the arbitrator, or for that matter this court, may go upon a mere preponderance of probability although in so doing it may not exclude every reasonable doubt.

It is only in criminal cases that every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond a reasonable doubt of their correctness.

In civil cases, one may, by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable probabilities even when that conclusion may not be the only reasonable one.

See in this regard the cases of

Ebrahim v Pittman NO 1995 (1) ZLR (H) and

Govan v Skidmore 1952 (1) SA 732.

It was therefore properly acceptable and not a misdirection on the part of the arbitrator to have found as he did.

In the result the appeal is dimissed with no order as to costs.