Besol Mining & Milling Syndicate v N. Mudimu & 6 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/708/16
HARARE, 18 OCTOBER 2016
CASE NO.
JUDGMENT NO. LC/H/708/2016
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/708/16

HARARE, 18 OCTOBER 2016			              CASE NO. LC/H/622/14

AND 4 NOVEMBER 2016

In the matter between:-

BESOL MINING & MILLING SYNDICATE			Appellant

AND

N. MUDIMU & 6 OTHERS					Respondents

Before the Honourable B.T Chivizhe: Judge

(IN CHAMBERS)

CHIVIZHE, J:

The appeal was referred to me for determination on the record in terms of Section 89 (2) (a) (i) of the Labour Act [Cap 28 : 01].  The matter was filed in July 2014 but has been lying idle due to failure on Appellant’s part to settle sheriff’s costs for services of Notice of Set-down.  On the basis of the directive by the Senior Judge dated 3rd October, 2016 that all idle matters ready for set down be referred for determination on the record the above matter was referred to me.  I proceed to determine the matter.

The appeal was noted as against an arbitral award handed down on the 2nd April, 2014 the operative part of which reads:

“Arbitral Award

The Respondent is victimising employees for unionising.  The dismissal is therefore unfair.  I therefore award that the Appellant be reinstated without loss of salary and benefits from the date of such dismissal.  In the event that the employment relationship is no longer favourable the Respondent is to pay the Appellants damages in lieu of reinstatement quantum of which shall be agreed by the parties.  Failure to agree, the Arbitrator is to quantify the damages in lieu of reinstatement.”

The Background Facts

The Respondents were employed by the Appellant.  The Respondent claims before the Arbitrator were that in 2011, 13 of the total 33 employees at the mine joined the Mining Workers Union of Zimbabwe.  The Union then set up a Workers Committee at the time.  In January 2012 Applicant transferred 8 employees who were also Union members to a mine where there were no sanitary facilities and accommodation.  It was Respondent’s further submission that having failed to report the Appellant then dismissed them without conducting a hearing.  The Respondent were before the Arbitrator claiming unlawful termination in the form of constructive dismissal following the imposition of intolerable conditions of work.  The Respondent also claimed that Appellant utilised an unregistered Code of Conduct to discipline them.

The Appellant before the Arbitrator disputed the submissions by the Respondent.  The Appellant instead alleged that after 13 of the workers joined the MWUZ the union began to visit the mine without notice and  were interfering with Appellant’s operations.  The employees then engaging in a go slow.  On 7th of January, 2012 the employees disobeyed a lawful order to go and work on a certain claim resulting in them being disciplined. The Appellant’s submission was that they had properly been charged with ‘wilful disobedience to a lawful order given by the employer’.  The Appellant dismissed Respondent allegations of victimisation for engaging in union business.

The Arbitrator found that the employees who were dismissed were trade union members, the Appellant wanted to transfer them to another mine, the employees refused, the Appellant then levelled charges of wilful disobedience of a lawful order, the Appellant however used an unregistered Code of Conduct. On this basis the Arbitrator concluded that there was unlawful termination and unfair dismissal.

The Appeal

The Appellant was seeking to appeal against the award on  the following grounds;

The Honourable Arbitrator erred and misdirected himself in law by holding that the Appellant had unlawfully dismissed the Respondent without a hearing when the facts on the ground do not support him particularly since the dismissal followed a hearing properly done by the Appellant upon the employees (Respondents) who had wilfully disobeyed a lawful order given them by the employer.

The Honourable Arbitrator committed a gross irregularity in holding that Respondents were victimised for being members of a trade union when this was not the truth.  Appellant willingly consented to the employees (Respondents) being members of the Trade Union and did not victimise them in any manner.

The Honourable Arbitrator misdirected himself in ordering the reinstatement of employees after making a finding that

“The employees refused to be transferred”

It is very clear that all the grounds of appeal taken by the Appellant do not attempt to challenge the Arbitrator’s conclusions on the law.  The ground of appeal do not therefore conform with Section 98 (10) of the Labour Act.  Section 98 (10) of the Labour Act provides for an appeal on ’a question of law’ from any decision of an arbitrator to the Labour Court.  The term ’a question of law’ has been clarified in this jurisdiction in various cases. See Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) at 220 D-F. Reference is also made to the case of National Foods Limited vs Stewart Mugadza SC 10/395 and Reserve Bank of Zimbabwe vs Granger & Another SC 34/2001 where a misdirection of fact was stated to be a failure to appreciate a fact at all or a finding that is contrary to the evidence actually presented.

I am satisfied on the basis of these authorities that the grounds of appeal not raising questions of law are improperly before the court and ought be struck out.

In the event that I am wrong and the grounds are properly before the court the grounds are in any event meritless.  The first ground attacks the Arbitrator’s factual finding that the Appellant had dismissed the Respondents without a hearing.  The Appellant’s submission is clearly misplaced.  The Arbitrator found that the Appellant had unlawfully dismissed the Respondents by conducting disciplinary hearings on the basis of an unregistered Code of Conduct.  That was the rationale behind his finding and conclusion that there was unfair dismissal. Section 12 B (2) (a) of the Labour Act (Cap 28:01) clearly provides that an employee is unfairly dismissed where the employer fails to show dismissal in terms of an employment code.  It is clear in casu the Respondent having been dismissed on the basis of an unregistered code were unlawfully dismissed.  The Arbitrator therefore did not err in his conclusion. The finding by the Arbitrator on this point remains unchallenged.

The second ground is alleging a gross irregularity in the proceedings.  That is a ground that is normally taken in the case of a review and not in an appeal. The ground having been taken in an appeal ought to clearly be struck out as I hereby do.

The last ground of appeal is not very clear.  The Appellant seems to be harping on the fact that the Arbitrator having found that the Respondents refused to be transferred ought to have concluded that the charge was proved and therefore he ought to have directed reinstatement.  The submission by the Appellant apart from the fact that it is attacking factual findings is also clearly misplaced.  The Arbitrator did find that the Respondents had refused to be transferred.  The rationale however for his conclusion that Respondents were unfairly dismissed was that they were disciplined under an unregistered Code of Conduct.  The Appellant is seeking to cherry pick on a minor finding without addressing the main finding made by the Arbitrator which is that the Respondents were unlawfully disciplined under an unregistered Code of Conduct. It is a finding which the Appellant has not clearly challenged.  It therefore remains extant.

In the result the appeal being devoid of merit, is hereby dismissed with no order as to costs.