Cotton Company of Zimbabwe v Bright Mudiwa N.O. & Priscilla Mutembwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 JULY 2025
JUDGMENT. NO LC/H/394/25
CASE NO. LC/H/1103/24
In the matter between: -
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 JULY 2025

JUDGMENT. NO LC/H/394/25 CASE NO.	LC/H/1103/24

In the matter between: -

COTTON COMPANY OF ZIMBABWE	APPELLANT

BRIGHT	MUDIWA	N.O.		1ST	RESPONDENT PRISCILLA MUTEMBWA	2ND RESPONDENT

Before the Honourable Kudya J

For the Appellant	C. Mucheche (Legal Practitioner)

For the 1st Respondent	No appearance

For the 2nd Respondent	N.Katsande (Legal Practitioner)

KUDYA J:

This is an appeal against the entire arbitral award by the Honourable Arbitrator Mudiwa handed down on the 23rd of September 2024.

The background facts of the matter are as follows:

Second Respondent was employed as a Chief Executive Officer (CEO)by the Appellant on the 1st of October 2023 in terms of a written contract which, provided for a three-month probationary period commencing on the 1st of October 2023 and ending on the 31st of December 2023.

A meeting was held on the 21st of December 2023 where the second Respondent was advised that, her contract would be terminated on the 31st of December 2023, the reason being that, she had ill alignment with the stakeholders.

She was further advised through a letter that, her contract would be terminated on account of unsatisfactory performance of her duties. The reason in the termination letter was now different from what she had been told in the meeting of 21 December 2023.

Aggrieved with the termination, she approached arbitration with a claim of unlawful termination whilst on probation. Resultantly, an arbitration award was handed down on the 23rd of September 2024, in her favour. The Honourable Arbitrator held that, the termination of her employment was unlawful. He ordered Appellant employer to pay the employee, damages in lieu of reinstatement as compensation for unlawful termination.

Aggrieved with the award, the Appellant employer approached this Court with the following grounds of appeal:

“1. The 1st respondent erred on a question of law in finding that the termination of the 2nd respondent's contract of employment was unlawful without proper legal basis.

The 1st respondent grossly erred on a question of law by accepting that there was no assessment justifying the termination of employment yet he disregarded the evidence placed before him.

The 1st respondent erred on a question of law by disregarding evidence placed showing that the 2nd respondent was given reasons for her termination of employment.

The 1st respondent erred on a question of law by awarding damages in lieu of reinstatement without the option of the primary remedy of reinstatement.”

In the result, the employer prayed that, the appeal succeeds with costs and that, the arbitral award be set aside.

In response to the appeal, the employee maintained in limine that, the appeal was bad at law in, that the relief sought was incomplete as it did not indicate what should happen in the event of success of the appeal. She also argued that, appeal grounds, particularly grounds 1 to 3 were not clear and concise. The grounds were therefore, in breach of the law relating to couching of appeal grounds. She prayed in limine that, on the success of the points in limine, the appeal be struck off with costs.

On the merits of the appeal, the employee stated in summary that: -

Ground 1

The Arbitral decision had a legal basis in that, termination of the probation contract was unlawful because, the employee had to be assessed before she could be asked to leave the job. The employer conceded the legal position as enunciated by the case authorities cited by the parties, but, since employer conceded that, there was no assessment, logically, the only finding that could be arrived at is that, the termination was unlawful.

Grounds 2 and 3

Employer conceded that, no assessment took place at the workplace to justify the termination. A party cannot aprobate and reprobate at the same time, which is what the employer sought to do through the appeal. Arbitrator need not have regarded assessment evidence since, the employer admitted that, no assessment took place. If there was a disregard of evidence, such evidence was irrelevant to the enquiry.

Assessment involves a two-way communication between employee and employer, where strengths, weaknesses and corrections are discussed prior to the decision to terminate the employment. Such was not done in the matter at hand. Employer secretly and single handedly assessed the employee without engaging her for areas of correction.

Ground 4

Employer had already engaged another employee in her place after it terminated her contract. It was therefore, futile to reinstate an employee into a position which was already filled up. The damages remedy was therefore, befitting in the case. In the result, the employee prayed that the appeal be dismissed with costs, for lack of merit.

On the hearing date of the appeal, parties agreed that both the points in limine and the merits of the matter be argued at the same time. After listening to the submission on the points, the court dismissed the points in limine, and ruled that, reasons for the dismissal would be contained in the final judgement. These are the reasons for the dismissal of the points in limine:

Defective Prayer

The employer conceded that, it had erroneously left out the portion in its prayer about, what should happen to the matter if, the appeal succeeded. It however underscored the fact that ,the anomaly was more of a technical glitch that could be cured by the court in its final order or judgement. It hastened to mention that, the order or the judgement in a matter, is that of the court and not of a party. It stated further that, if the court places itself in the arbitrator’s position it would go without saying that, once the appeal succeeded the arbitral award would then naturally fall away.

On the other hand, the employee was adamant that, the authority of Dalny Mine vs Banda 1991

(1) ZLR 220 (S) did not mean that irregularities had to be excused but that, they had to be put right. In her view, allowing the appellant’s prayer to pass as ill pleaded as it was, would lead to a diminution of the value that should be attached to ensuring that, due administration of justice should take place within the dictates of the law and the rules of the court

Uchena JA in Dalny Mine Supra commenting on determination of labour matters on technicalities stated that:

“As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right.”

This point was further articulated in the case of Nyahuma v Barclays Bank of Zimbabwe SC 67/05

at 6 wherein the court held as follows:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

In the instant matter, no prejudice was suffered by the employee, on account of the defective prayer by the employer.

On the authority of Fred Rebecca vs Mapondera SC 81/22 the court is encouraged to try and ensure that labour matters are resolved on their merits rather than, on technicalities. It is granted that,

Mapondera Supra was dealing with mis citation of parties, but in the instant matter, the addition of what would happen to the matter after success or failure of the appeal is more an issue of form than substance.

It cannot be gain said that, once the appeal succeeds, the arbitral award would fall away and once appeal fails the award would stand. It is the court’s view that, very little would be achieved by striking the matter off to make room for the inclusion of the line speaking to what would happen to the matter after the success or failure of the appeal. The point in limine was on the basis of the above concluded to be without merit. It was therefore failed.

Irregular appeal grounds

It is settled that, appeal grounds have to be clear and concise. See Kunonga v CPCA SC 25/17. A reading of the appeal grounds shows clearly what the employer disquiet is. It is not happy with the fact that, the arbitrator concluded that the employee’s contract was terminated unlawfully. In its view, there was sufficient evidence that it had followed the law, in terminating the contract.

A perusal of the grounds, particularly grounds 1 to 3 show that, they were inelegantly crafted. This is so, because, they all spoke to a singular issue which was however fragmented and expressed as 3 grounds instead of, a single ground. Such inelegance does not cause these grounds to be so bad at law, as to be adjudged as being no grounds at all, attracting a striking off order.

The court reiterates the reasoning in Mapondera Supra of avoiding determining issues based on technicalities. The inelegance aside, the court could appreciate with sufficient clarity what the employer was unhappy about. There was therefore, no need to strike the matter off, on the basis pleaded in this second point in limine. In the ultimate, the court was satisfied that, both points in limine were not merited so they were dismissed.

Turning to the merits of the appeal, the court came up with the conclusions discussed below:

Grounds 1 to 3

These grounds were dealt with, as a single ground because, they spoke essentially to the same issue. The critical issue was, on the basis of the facts and the law discussed before the arbitrator could it be concluded that the employee probation contract had been terminated lawfully or not?.

Both parties shared case law which discussed the construct of probation contracts. See St Giles Rehabilitation Centre v Patsanza SC59/18 and CBZ V Kwangwari HC H 77/03. What is pertinent to note from the authorities is that, they set out clearly that, probation is a period of testing whether the employee can be confirmed as a substantive member of the organisation. To conclude whether an employee is performing well or underperforming, it is imperative that her work be assessed.

In the case at hand, it is on record that, the employer simply stated to the employee that she was underperforming. It was not clear what yardstick was used to conclude as such.

In its arguments before the labour court, the employer was adamant that assessing a probation employee was not a legal but a moral obligation. That however was not in sync with the law in the cited cases. If the argument by the employer is taken to its logical conclusion, then there would be no need for what can be termed probation which essentially is a trial period.

The court is satisfied that, the employer ‘s view that, assessment of an employee on probation is directory is without legal backing. It appears, that such a reading of the law is what caused the employer not to treat the question of assessment with the seriousness it deserved. This court therefore, finds no fault with the conclusion which the arbitrator arrived at, that, the employer had not exercised its discretion well when it terminated the employee’s contract.

It is settled that, the threshold to upset a trier of fact’s findings is very high. See Hama v NRZ 1996(2) ZLR 664 (S). This threshold was not reached in the matter at hand so, appeal grounds 1 to 3 fail.

GROUND 4

It is settled that, reinstatement is the primary remedy for an employee who is adjudged to have been unlawfully dismissed from his job. See CIMAS v Nyandoro SC6/16

The reinstatement remedy however has to be applied within the factual context of the matter. In the case at hand, it is stated as a fact that, the employee was replaced by someone when she lost

her job. There was therefore no job to reinstate her in, when the position had already been filled by someone. No value would have been achieved by reinstating her in an absent position. Doing so, would have been akin to handing down a brutum fulmen.

Courts are urged not to hand down brutum fulmen orders. See Minister of Lands v Fletcher SC 3/24. This ground being devoid of merit too should fail.

In the ultimate, all appeal grounds being without merit should fail.

IT IS ORDERED THAT

All appeal grounds being without merit, they be and are hereby dismissed with costs on the ordinary scale.

Mucheche Law Chambers, Appellant’s Legal Practitioners

Maguchu and Muchada Business Attorneys, 2nd Respondent’s Legal Practitioners