Christopher Ruzivo v Inscor Africa Bread Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/735/16
HELD AT HARARE 17 MAY 2016
CASE NO
JUDGMENT NO LC/H/735/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/735/16

HELD AT HARARE 17 MAY 2016				CASE NO LC/H/1141/15

& 18 NOVEMBER 2016

In the matter between:

CHRISTOPHER RUZIVO				Appellant

And

INNSCOR AFRICA BREAD COMPANY		Respondent

Before The Honourable Chidziva, J

For Appellant		S Chipomho (Trade Unionist)

For Respondent		S Chidemo (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of honourable arbitrator P Chirongoma dated 4 December 2015.  The arbitrator in this award turned down the claim for non-payment of terminal benefits for lack of merit.

The brief hearing of this matter is that

the appellant was employed as a van salesman from 1 June 2013 until his termination on 13 September 2013 after a disciplinary hearing.

On April 2014 following a conciliation hearing, the appellant was paid out his terminal benefits including his outstanding overtime for work done on public holidays.

The appellant signed for the terminal benefits and payment

The appellant thereafter raised a complaint with the National Employment Council for Food and Allied Industries against the respondent alleging non-payment of overtime and leave days.

At arbitration the arbitrator found in favour of the respondent thereby leading to the appeal before this court.

The grounds of appeal are as follows

The arbitrator erred on a question of law in finding that the claimant’s claim of	 non-payment of terminal benefits is meritless because it is claimant’s legal right to be paid the said terminal benefits as enshrined in section 13 of the Labour Act [Chapter 28:01]  of 1996 as read with section 23 of S.I. 22/2013.

The arbitrator grossly erred on a question of law by regarding the payment of overtime worked on off days paid on 17 April 2014 as the payment of terminal benefits.  Of which the claim of overtime on off days was part of the claim which respondent agreed to pay hence payment was made on 17 April 2014.

The learned arbitrator misdirected himself  by disregarding claimant claim of non-payment of cash in lieu of leave when he dismissed claimant’s claim of overtime without any proof proferred by the respondent that the clamant claim of overtime without any proof proferred by the respondent that the claimant was being paid on commission basis.

The appellant prayed for an order reversing the arbitral award and claimed

payment of $4902.04 arising from non-payment of overtime and non-payment of cash in lieu of leave.

The respondent in response raised a point in limine to the effect that

The grounds of appeal raise contentions to do with factual findings of the arbitrator rather than with any misappropriation of the law.

The appellant has not raised an issue on question of law.

It is this point in limine  that the court is going to deal with section 98 (10) of the Labour Act [Chapter 28:01] stated that

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointment in terms of this section.”

The case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at p 220 describes a question of law as follows

“- a question as to what the 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.”

The arbitrator’s finding was that appellant was a commissioned worker and that he was not entitled to overtime.  The question that was decided by the arbitrator is whether or not the appellant was entitled to claim overtime.  The appellant did not state the unreasonableness of the arbitrator’s findings.  The appellant did not state what the true rule of law is on the issues of commissioned workers.

In the case of Innscor Africa (Pvt) Ltd v Chimhini 2012 ZWSC MALABA DCJ stated that

“A principle has now been firmly established to the effect that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

This court cannot interfere with the decision of the arbitrator because it is not unreasonable.

In view of the foregoing therefore it is ordered that

The point in limine be and is hereby upheld.

Appellant to pay costs.

Honey & Blackenberg, respondent’s legal practitioners