Bhauren Mhuma v Bindura University of Science Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/731/2014
HARARE, 30 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/731/2014

HARARE, 30 JUNE 2014				        CASE NO. LC/H/181/14

AND 24 OCTOBER 2014

In the matter between:-

BHAUREN MHUMA							Appellant

And

BINDURA UNIVERSITY OF SCIENCE EDUCATION		Respondent

Before Honourable L. Kudya, Judge

For Appellant	R.G. Zhuwarara with G. Chingoma (Legal Practitioner)

For Respondent		G.C. Manyurureni (Legal Practitioner)

KUDYA, J:

This is an appeal against an arbitral award handed down by Honourable Kare where he ruled that the now appellant was not entitled to automatic renewal of his three year contract and that the now respondent pay to the appellant three months salary in lieu of notice and all calculable benefits among to the appellant.

The background to the matter is that appellant who was in the respondent’s employ as bursar had occasion to approach the arbitrator after the respondent had terminated his last contract on seven days notice.  The arbitrator was called upon to determine whether appellant was entitled to a renewal of his contract and if so profer a remedy that is reinstatement or damages in place of reinstatement.  What is of critical note are the terms contained in the contract between the parties which were as follows:

“The contract shall be ……. renewable on condition of satisfactory performance.  ………. The intention not to renew or extend this contract shall be communicated to the member in writing, at least (3) three months prior to the expiry of the present contract”

It is the breach of this condition which led to the dispute between the parties and culminated in the instant appeal where the appellant was aggrieved by the arbitral award.

The basic grounds of appeal were:-

Arbitrator erred at law in failing to comprehend the issues before him.  His findings were that the appellant was not entitled to an automatic renewal of his contract when this was never an issue before him.

Arbitrator having held that the respondent unlawfully terminated the appellant’s contract of employment, erred at law in (a) purporting to give notice on behalf of the respondent and/or otherwise creating a remedy for the respondent (b) not applying the provisions of the Labour Act which obliged him to order reinstatement of the appellant or payment of damages in lieu of reinstatement (c) in declining to consider payment of damages and evidence for such payment which was placed before him.

Arbitrator erred at law in considering “evidence” of misdemeanors by other employees which was placed before him which was irrelevant to the issues before him and thereafter basing his findings and award on that evidence.

In the result appellant prayed that the decision of the arbitrator be set aside and that the appellant be reinstated to his position without loss of salary and benefits.

In response to the appeal the respondent maintained that:-

Arbitrator did not err as alleged or at all.  His findings are sustainable at law.

Arbitrator merely awarded cash in lieu of notice because the issue of legitimate expectation had not been proved.  His conduct in that regard is not akin to creating a remedy for the respondent.

The provisions of the Labour Act relating to payment of damages in lieu of reinstatement did not apply in this scenario since the contract had been terminated by passage of time and in a manner which was procedurally regular.

Appellant was answerable for his subordinates’ misdeeds since they evinced the general rot that had pervaded the department.  The evidence led in that regard was relevant.

In the result the respondent prayed for a dismissal of the appeal.  The law is clear as regards appeals from arbitration that these shall only lie to the labour court on a question of law.  See Section 98 (10) Labour Act [Chapter 28:01], what a point of law as opposed to fact.  See Muzuva v United Bottles 1994 (1) ZLR 217.

Applying the legal principles set out in the quoted section of the Act and the quoted case the question to be decided is whether the appellant has placed before the court enough facts to demonstrate that the arbitrator erred at law and that his decision has to be censured.  Each of the grounds of appeal will be addressed in turn below:

Ground 1

As regards this ground appellant argued at length that the issue of automatic renewal was not before the arbitrator.  To that extent reference to such and concluding the issue on that basis was highly irregular.  He went on to cite extensive authority on what the law says vis an arbitrator’s exceeding her/his terms of reference.

Since the quoted cases are apparent on the face of the record they thus deserve no restatement.  It is indeed trite that an arbitrator cannot go outside the terms of reference otherwise the award would be voidable for such an anomaly.  The question to be answered however is whether it can be said arbitrator did go out of his term by reference to automatic renewal.

It is clear from the terms of reference that arbitrator was called upon to decide whether appellant was entitled to a renewal of his contract.  It is also common cause that the contract clause said that contract was so renewable unless notice was given by the employer not to renew.  It was also apparent that the question of whether contract could be renewed or not was premised or the standard of performance by the appellant.  The reference to automatic renewal was within the context of the fact that before once could talk about renewal one had to decide on the appellant’s performance.

A reading of the award and documents tendered at arbitration shows that the arbitrator concluded that indeed appellant’s performance could not be rated satisfactiory in the wake of the complaints communicated to him about what was happening in his department and how the respondent was unhappy about that.  Further to that, arbitrator noted that the 83 out of 150 rating could not be concluded to be satisfactory hence the arbitrator came to the conclusion that appellant was not entitled to automatic renewal.

The court fails to find fault with that reasoning.  As earlier stated the reference to automatic renewal was within the context of the appellant’s performance.  The court is therefore not convinced that the arbitrator went out of his terms of reference to that extent.  That being the case it also follows that there was no way he could conclude that appellant was entitled to a renewal of the contract in this circumstance.  In the result the court is satisfied that this ground lacks merit and it should fail.

Ground 2

As regards the issue of notice it is worth noting that what arbitrator was called upon to do was to profer a remedy following his conclusion of what the position was supposed to be vis the appellant’s contract.  It is clear from a reading of the record at arbitration that from a factual perspective arbitrator was persuaded that appellant had no reason to harbour any legitimate expectation of renewal of his contract.  What he should have found fault with was the respondent’s failure to follow the laid down procedure of notifying him of its intention not to renew the contract at least 3 months prior. This effectively means that the flaw was not about the non renewal but rather the failure to communicate that within the set times.

The question which therefore has to exercise the court’ mind is whether the failure to adhere to the set notification time lines was fatal to the extent that it called for a reinstatement or an order that the contracts runs its full course.  It has already been concluded that the non renewal of the contract was apparent from the facts of the matter and it would have been naive for the respondent to expect to have contract run for a further term in the wake of the misgiving that the respondent had about his performance.  It was clear that appellant had failed the “satisfactory” test and the end result would have been a non renewal of the contract.

Taking into account the fact that respondent should have given the appellant 3 months notice of its intention not to renew the contract the question then becomes was it then irregular for the arbitrator to rule that the anomaly be cured by an order directing that he be unpaid the salary equivalent of the 3 months notice.  I think not.  This is so because arbitrator did not rule that appellant’s contract had to be renewed irrespective on his underperformance.

If that were the ruling then the argument about reinstatement would have become relevant.  It is the court’s view, that the manner in which the arbitrator handled the facts surrounding the notice is unassailable and is not consent with the appellant’s argument that he ought to have reinstated him.  A reinstatement order would be premised on the conclusion that the non renewal was irregular which is not so.  If the court were to order reinstatement that would be akin to forcing the respondent to renew the contract in circumstances where it showed that the appellant did not merit such renewal.  This ground also being without merit should also fail.

Ground 3

As regards payment of damages what can be gleaned from the award is that arbitrator declined to make an award on issues which where contested by the parties.  It is clear that the case was not a quantification rate case hence it was not obligatory on the arbitrator to make an award on the mere say so of the parties without evidence being led to prove the claims.  To that extent the court finds no fault with the arbitrator’s ruling that respondent pays to appellant all the dues mutually agreeable between them.  This ground also lacking in merit should fail.

In the final analysis it is clear that all the grounds of appeal are not merited and they should accordingly fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with each party bearing its own costs.

DUBE, MANIKAI & HWACHA, Appellant’s legal practitioners

MANYURURENI & COMPANY, Respondent’s legal practitioners