Andreya Ndiraya V Printflow Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/234/2013
HARARE, 27 SEPTEMBER 2012
CASE NO.
JUDGMENT NO.LC/H/234/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/234/2013

HARARE, 27 SEPTEMBER 2012			         CASE NO. LC/H/492/2010

In the matter between

ANDREYA NDIRAYA				-		Appellant

And

PRINTFLOW PRIVATE LIMITED		-		Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr T. Katsuro (Legal Practitioner)

Zimbabwe Legal Centre

For Respondent	-	Mr T. Tandi – (Legal Practitioner)

Kantor and Immerman

CHIVIZHE, B.T.:

The appeal is noted against the arbitral award handed down on 3 May, 2010 wherein the Arbitrator upheld the conviction and consequently dismissal of Appellant by the Respondent for violation of the applicable code.

The material background facts are as follows:

The Appellant was employed by the Respondent as a Foreman, a managerial position.  He was arraigned before a disciplinary hearing authority on the 5th of November, 2009 on allegations of 3 violations of Statutory Instrument 15 of 2006 of the National Code Section 4 (a) i.e. any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract.  The charges were founded on allegations that Appellant had;

Operated a private office in the Binding basement.

Kept a number of publications in the office without authority.

When he was approached by External Auditors (Comptroller and Auditor General) to open the door for inspection in the course of their duties Appellant claimed that he had left the keys to the said office at home when he had them in his pocket.  His explanation at the time was that he did not know that the persons were auditors not having been informed of their pending visit.

The Disciplinary Committee then imposed a Dismissal penalty.  The Appellant was aggrieved by the decision.  He then approached the Labour officer with a complainant of Unfair Dismissal.  When the Labour Officer failed to conciliate he issued a Certificate of No Settlement and referred matter for compulsory arbitration.  The Arbitrator’s terms of reference were;

“To determine whether the dismissal was fair or not.  To determine whether the dismissal was procedural or not.  To determine the appropriate remedy”

The Arbitrator in his award found that the Appellant had been properly dismissed on the charges.  He consequently upheld the dismissal penalty.  Still dissatisfied the Appellant then noted the present appeal against the Arbitrator’s findings.

The appeal has been noted on the following grounds;

The Honourable Arbitrator erred at law misdirected himself by finding that the Appellant had committed the alleged misconduct.

The Honourable Arbitrator erred at law in upholding that the dismissal was fair and procedural.

The Honourable Arbitrator erred and misdirected himself at law in holding that the Appellant had committed the alleged misconduct whereas there was no substantial evidence linking the Appellant to the alleged misconduct.

The Honourable Arbitrator erred at law in relying on inferences and assumptions and substantial evidence to come up with his determination.

The Honourable Arbitrator also made a glaring error and misdirected himself in finding that the hearing procedure was fair whereas the hearing committee was improperly constituted.

The Honourable Arbitrator erred at law in disregarding the fact that the withholding of Minute by the Respondent was fatally defective at law.

The Arbitrator fatally erred at law to take into account the mitigating factor submitted to it by the Appellant in making the decision.

The Respondent in its response contends that the issues raised in the Appellant’s grounds of appeal are issues of fact and not law.  The submission is based on the premise that by virtue of Section 98 (10) of the Labour Act [Chapter 28:01] appeals to the Labour Court against an Arbitrator’s award can only be on question of law.

The first issue to determine therefore is whether the grounds of appeal as filed by the Appellant do raise issues of law.  The meaning of term “question of law” has received considerable attention in our jurisdiction.  The leading case is the oft cited case of Muzuva vs United Bottlers (Pvt) Ltd 1994 (I) ZLR 217 (S).  In that decision the term “question of law” is classified into three distinct but related senses.  First it means “a question which the law has authoritatively answered to the exclusion of the right of the court to answer the question as it twists far in accordance with what is considered to be the truth and justice of the matter.”  Second it means “a question to what he law is.  Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.”  Thirdly it means “any question which is with the presence of the Judge instead of the jury is called a question of law.”  The term question of law has also in recent times been discussed in the matter of Sable Chemical Industries Limited vs David Peter Easterbrook SC 18/10 aptly cited by the Respondent .  In the matter Garwe JA in placing reliance on the Muzuva decision adopted the same definition referred to above.

There is yet a fourth category which is based on gross misdirection on facts which is so unreasonable that no reasonable person who applied his position to the facts would arrive at such a decision.  This was laid down in Hama vs National Railways of Zimbabwe 1996 (I) ZLR 664 (S) National Foods Limited vs Stewart Mugadza SC 05/95.

Applying the principles set out in the cases referred to supra there is no doubt in my mind that the present appeal does not raise questions of law.  I find it convenient to address each of the grounds of appeal in turn.

In the first ground of appeal Appellant alleges that the Arbitrator committed misdirection by finding that the Appellant committed the alleged misconduct.  The finding by the Arbitrator was based on facts.  There has been no submission by the Appellant that the Arbitrator misdirected himself on the facts such that no reasonable person who had applied his mind to the facts would have arrived at such a decision.

The second ground of appeal the Appellant alleges the Arbitrator erred at law in upholding that the dismissal was fair and procedural.  The conclusion by the Arbitrator was clearly based on his factual findings that the proceedings were fair and procedural.  There is clearly no question of law raised in that ground.

In the third ground the Appellant alleges that the Arbitrator erred and misdirected himself at law in concluding that the Appellant committed the alleged misconduct in the absence of substantial evidence linking Appellant to the misconduct.  Ground number 4 is more or less the same as Ground 3.

Ground number 5 is that the Arbitrator erred on a question of law in concluding that the hearing procedure was fair whereas the Disciplinary Committee was improperly constituted.  The Respondent position is that the question is one fact and not law and he has relied on the case of Sable Chemical Industries Limited vs David Peter Easterbrook referred to supra.  I agree completely with the Respondent.  The finding by the Arbitrator that the hearing procedure was fair is a matter of fact and not law.  In the Sable Chemical Industries case referred to by Respondent Garwe J.A. specifically found that a ground of appeal challenging a finding based on the improper composition of disciplinary committee raises question of fact and not law.

Ground number 6 and 7 equally raise issues of fact and not law.  In Ground number 6 there is the allegation that the Arbitrator erred at law in disregarding the fact that the withholding of Minutes by the Respondent was fatally defective at law.  The last ground number 7 Appellant suggests the Arbitrator erred at law by failing to consider mitigation submitted by Appellant.  The fact that the arbitral award does not seem to address the issues of mitigation and aggravation raised before the Arbitrator does not follow that the Arbitrator did not weigh the two issues.  There is no question of law raised by this ground.  There has also been no allegation of a gross misdirection on the facts as to amount to misdirection in law.

The appeal clearly fails on the basis that none of the grounds of appeal raises any issues of law.  It is accordingly ordered as follows;

The appeal be and is hereby dismissed with no order as to costs.