Blessing Bwanya v Bindura University of Science Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/441/2016
HARARE, 29 FEBRUARY 2016 &
CASE NO LC/H/REV/120/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/441/2016

HARARE, 29 FEBRUARY 2016 &				CASE NO LC/H/REV/120/2015

22 JULY 2016

In the matter between

BLESSING BWANYA							APPLICANT

Versus

BINDURA UNIVERSITY OF SCIENCE					RESPONDENT

EDUCATION

Before the Honourable R F Manyangadze J

For the Applicant	M Ndebele (Legal Practitioner)

For the Respondent	G C Manyurureni (Legal Practitioner)

MANYANGADZE J:

This is an application for the review of arbitral proceedings conducted by Honourable L Denhere, in terms of which the applicant’s claim that he was unfairly dismissed was held to be without merit.

The facts forming the background to this case are common cause.

The applicant was employed by the respondent as Printing Press Manager. He was so employed on a four year fixed term contract, running from July 2011 to July 2015.

The contract was terminated by the respondent through lapse of time. It had reached its full term. Before the expiry of the contract, the applicant was given three months’ notice that the contract was not going to be renewed

The applicant lodged a complaint with a labour officer, alleging unfair dismissal. The basis of his complaint was that he had a legitimate expectation of renewal of the contract. This contention did not find favour with the arbitrator, who handed down, on 16 October 2015, an arbitral award wherein he found that no case for legitimate expectation had been satisfactorily established by the applicant. He then ruled that the applicant was not unfairly dismissed.

The applicant filed an application for review with this court. The grounds for review are stated as follows:

“1 (a)	The arbitrator misrepresented by not disclosing that parties had indicated that an oral hearing would be at the discretion of either party or both.

(b)	The arbitrator erred when he proceeded to make a determination without calling for an oral hearing as had been agreed by the parties.

(c)	The arbitrator erred when seeing that there were facts and matters that had been unsolved in the written submissions did not call for the oral hearing or at least ascertain from the parties if an oral hearing was anticipated.

(d)	It follows therefore that the claimant was not afforded an opportunity to fully present its matter.

(e)	It further follows that the record was not closed when the arbitrator proceeded to make a determination.”

The applicant’s grounds for review boil down to one fundamental averment - that he was not given an opportunity to be heard when the matter was determined. The arbitrator was in breach of one of the cardinal principles of natural justice, the audi alteram partem principle.

The applicant made fairly extensive reference to authorities on the said principle. These include G Feltoe’s A Guide to the Administration & Local Government Law in Zimbabwe 3rd ed  1987, Riekert’s Basic Employment Law, Second edition, Rwodzi v Municipality of Chegutu HH 86-03, the Constitution of Zimbabwe, and the Administrative Justice Act [Chapter 10:28].

In response, the respondent’s main averment was that the parties agreed that the matter be determined on the basis of their written submissions. They gave the arbitrator the mandate to proceed on the basis of their written submissions. These submissions exhaustively dealt with the issues which fell for determination. To that end, the parties were accorded equal opportunity to present their cases. There was therefore no breach of the rules of natural justice.

The record shows that it is on that basis that the arbitrator proceeded. At the outset of his arbitral award, the arbitrator recorded:

“A pre-arbitration hearing was scheduled for 20 August 2015 and counsel for both parties agreed to proceed by written submissions. Parties were afforded a full and fair opportunity to present their cases before the record closed.” (underlining added)

The arbitrator then made an extensive summary of both parties’ submissions, wherein the issues in dispute were highlighted and analysed.

The applicant was not clear on whether or not the parties, or him in particular, specifically requested for an oral hearing. At the hearing of the appeal, the applicant submitted that:

“… the discretion was on either party to call for an oral hearing”

There is nothing to show that an oral hearing was requested. The issue is similarly vague in the applicant’s heads of argument. Paragraph 2.3 states:

“2.3	It is further submitted that the arbitrator was in direct contravention of the audi alteram partem rule when not according the applicant a proper opportunity to be heard when the parties had agreed that an oral hearing would be at the discretion of either, or both of the parties, and proceeded to make a determination on the written submissions without affording the oral hearing which was contemplated by both parties.”

The applicant is not saying that the parties agreed that the arbitrator should conduct an oral hearing. He seems to be saying that they left it open to the arbitrator to conduct an oral hearing, if need be. This is in fact what the respondent averred at the hearing of this application:

“The understanding was that it was for the arbitrator to call for oral submissions if need be. The applicant filed a fairly detailed claim in his statement. In equal measure, the respondent proffered a fairly detailed response ……

Where the parties submit in writing, the right to be heard would have been observed. It was up to the arbitrator to invite oral submissions if need be. That he proceeded and made a ruling clearly shows that he didn’t need the oral submissions.”

The position on oral hearings is governed by Section 24 (1) of the schedule to the Arbitration Act [Chapter 7:15], which provides:

“Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearing shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.”

As already indicated, the applicant’s submissions do not show that he requested for an oral hearing.

He has not argued that the arbitrator overruled any objections he made to a determination of the matter on the papers. He has also not shown that the arbitrator dismissed any request he made for an oral hearing. All this lends credence to the arbitrator having recorded that the parties agreed to proceed by way of written submissions.

In the circumstances, there was no misdirection on the part of the arbitrator. He was not in breach of the provisions of the Arbitration Act. He was not in breach of the principles of natural justice.

The court cannot go into the alleged shortcomings of the submissions the arbitrator relied on, without risking a determination of the substantive issues before the arbitrator. Such issues will be within the purview of an appeal and would improperly shift this enquiry from a review.

In the circumstances, the court finds no merit in the application for review. It is accordingly ordered that:

The application be and is hereby dismissed.

The applicant shall pay the respondent’s costs.

Zvinavakobvu Law Chambers, applicant’s legal practitioners

Manyurureni & Company, respondent’s legal practitioners