Dairibord Holdings Ltd v Benson Samudzimu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/757/2016
HARARE, 26 FEBRUARY 2016
CASE NO. LC/H/74/10
JUDGMENT NO. LC/H/757/2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/757/2016

HARARE, 26 FEBRUARY 2016			    CASE NO. LC/H/74/10

AND 2 DECEMBER 2016

In the matter between:-

DAIRIBORD HOLDINGS LTD			Appellant

And

BENSON SAMUDZIMU				Respondent

Before Honourables B.S. Chidziva, J

E. Makamure, J

L. Hove, J

For Appellant		Advocate T Mpofu

For Respondent		Advocate Magwaliba

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator AJ Manase dated 8 February 2010.  The award stated as follows:

“I am of the view that it is in both parties interests that the matter should be brought to an end now.  The protraction of this matter serves no one’s interests

I award as follows;

Normally respondent should be reinstated to the position of Business Development Director with Claimant without loss of salary and benefits.  The parties are at liberty to adopt this course of action.

As earlier stated I found the relationship between the parties to be acrimonious, clearly reinstatement might not be in the best interest of the parties.  In that event Claimant is at liberty to terminate respondent’s contract on a package in terms of the relevant labour laws of the country.

Respondent is awarded costs.”

The back ground of this matter is that there was disharmony between the parties and the respondent was charged for several acts of misconduct and he was dismissed from employment.  Upon arbitration the arbitrator came up with the award stated above.

The appellant has filed an appeal stating that the arbitrator erred by finding that the respondent was not guilty of any of the charges that were preferred against him or of any alternative charge that could be upheld as a competent verdict.

The respondent in response submitted that appellant had approached the court with dirty hands because they had not complied with the arbitral award.

In cross-appeal the respondent submitted that;

The arbitrator erred in law in holding that the relationship between the parties had become acrimonious and that the respondent was at liberty to terminate the respondent’s contract of employment on a package in terms of the relevant labour laws of this country. The appellant never led evidence to the effect that the employment relationship between Dairibord and Mr Samudzimu had become untenable.

The Arbitrator failed to appreciate that respondent was a victim of victimization by his immediate boss, Mr Anthony Mandiwanza.

When the parties appeared before this court Mr Magwaliba raised a point in limine.  He indicated that this appeal was res judicata.  The appellant had taken all grounds of review on appeal.  It was further submitted that the grounds of review in the case that was dealt with by Judge Muchawa in case Number LC/H/77/15 on 16 February 2015 concluded that there was nothing irregular in the decision of the arbitrator.  The grounds for review relate to the same issues as the appeal.

Advocate Mpofu in response stated that;

Advocate Magwaliba took them by surprise because this issue had not

been raised in the previous appearances.

The judgment by Justice Muchawa and other 2 Judges does not comment on the decision of the arbitrator.

What is to be decided is whether or not the matter is res-judicata.

The case of Philikini v AG 1999 ZLR (1) 105 clearly stated that review procedures and appeal procedures are two distinct procedures.  Hebstein and Van Winsen 4th Edition page 929 states that:

“Upon review the court is in general terms concerned with the legality of the decision not with its merits.  The function of judiciary review is to scrutinize the legality of administrative action, not to secure or substitute a decision by a judge in the place of the decision of an administrator.”

Hebstein and Van Winsen on page 933 further states that

“The first distinction depends therefore on whether it is the result only or rather the method of the trial which is to be attacked.  Naturally the method of the trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The ground of judgment not justified by the evidence would be a matter of appeal and not of review upon this test.  The essential question in review proceedings is not the correctness of the decision under review but its validity.”

Justice Muchawa in the case of Dairibord Holdings Ltd v Benson Samudzimu LC/H/74/10 indicated that,

“It seems to me that applicant wishes to draw this court to determine whether first respondent’s decision is correct on its merits.  At the moment we are not sitting as an appeal court.  The test to be satisfied by applicant is not an easy one.  It is clearly so stated in the case of Robert Dombodzvuku & Anor v Sithole N.O. and The Attorney General HH 174 – 04.”

Justice’s Muchawa therefore dealt with the validity of the arbitrator’s award not the merits of the case.  In view of this therefore this court finds that it is the appeal which is going to deal with the merits of the case and it is properly before this court. This means that the case is not resjudicata.

The grounds of appeal before this court are that;

The arbitrator erred in law in holding that the relationship between the parties had become academies and that the Respondent was at liberty to terminate the Respondent’s contract of employment on a package in terms of the relevant Labour Laws of this country.  In making such finding the Honourable Arbitrator erred by failing to appreciate that in terms of the Labour Relations Act, the onus of proving that the employment relationship between the parties had become untenable was with the employer.  In the matter in casu, the employer never led any evidence to suggest that the employment relationship between Dairibord and Mr Samudzimu had become untenable.

The Honourable Arbitrator failed to appreciate that the Appellant was a victim of victimisation on by his immediate boss are Anthony Mandiwanza who was of this mistaken belief that the Appellant was going out with his (Mr Mandiwanza’s) girl friend who is also employed by Dairibord and reporting directly to Mr Mandiwanza

The arbitrator made factual findings to the effect that;

“1) Mr Mandiwanza was evasive although not outrightly fasify

evidence.  I thus do not regard his evidence as particularly reliable.

The failure to provide a coupon for 47 litres fuel consumed cannot be theft.  The fuel was openly drawn and signed for clearly showing an intention to make do.

No evidence was adduced to the effect that leave had previously been taken without the forms being forwarded for approval and recording except that one time Respondent promised to forward the approved form and had not done so up to the time of the commencement of these proceedings.  By this time the correct leave days had been ascertained.  The charge is not sustainable.

As earlier stated I found the relationship between the parties to be acrimonious.”

The findings by the arbitrator are reasonable and were supported by the analysis of the conduce that was brought before him. I therefore find no basis to interfere with the arbitrator’s findings.

This court therefore is going to deal with the merits of the case.  In the case of Ebrahim vs Pittman No 1995 (1) ZLR H 184-185 it was held that,

“It is trite law that in general, in finding facts and making references in a civil case, the court may go upon a mere preponderance of probability, although in so doing does not exclude every reasonable doubt.

In criminal cases however every fact material to establish the guilty of the accused must, unless it is admitted be established by proof beyond reasonable doubt and inference for facts must, in order to be permissible be such as to leave no reasonable doubt of their propriety and correctness.

In civil … one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

This court upon analysing the factual findings by the arbitrator, did not find any unreasonableness in his decision.  Furthermore this court has already found that there was no unreasonableness in the findings of the arbitrator.  Justice Muchawa stated that,

“A reading of the award shows that it was arrived at after hearing argument from both counsel, looking at documentary evidence and that of applicant Mr Mandiwanga.”

Having come to the conclusion that the factual findings by the arbitrator were reasonable the appeal is therefore is found to be without merit.

The respondent filed a cross appeal in which he stated that the arbitrator erred by finding that the relationship between the parties had turned acrimonious and yet no evidence to that effect had been led.  He also stated that he was a victim of victimisation.  This court is remitting this case to the arbitrator to hear evidence on whether the relationship is now so acrimonious that the respondent cannot be reinstated. The arbitrator had no basis to state that the relationship was untenable without hearing evidence.

To that end therefore it is ordered that,

The point in limine be and is hereby dismissed for lack of merit.

The main appeal be and is hereby dismissed.

The matter in the cross-appeal be and is hereby remitted to the arbitrator to determine whether the relationship between Dairibord and Mr Samudzimu has become untenable.

The arbitrator should finalise this hearing by January 2017.

Each party shall bear own costs.

……………………………………….

Chidziva J

………………………………………. I agree

Makamure J

………………………………………. I agree

Hove J

Dube, Manikai & Hwacha, applicant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners