Donavan Mitchell v Zimbabwe Spring Stell (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/222/14
HELD AT HARARE 10TH SEPTEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/222/14

HELD AT HARARE 10TH SEPTEMBER 2014		CASE NO LC/H/325/12

& 11TH APRIL 2014

In the matter between:-

DONAVAN MITCHELL					Appellant

And

ZIMBABWE SPRING STELL (PVT) LTD			Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr T Nyamasoka (Legal Practitioner)

For Respondent		Mr A Mugandiwa (Legal Practitioner)

CHIDZIVA, J:

This court reserved judgment on point in limine and merits on the

16 September 2013 after the respondent through its lawyers Mr A Mugandiwa had raised a point in limine.  The respondent submitted that the grounds of appeal that the appellant had raised were of fact and not law.  On the other hand the appellant told the court that the issues that had been raised were points of law and that this court had to deal with the merits of the appeal.

The brief background of this matter is whether or not

The respondent reinstated the appellant

The claimant refused to be reinstated.

The Honourable arbitrator J.T. Mawire in his findings stated that

“Accordingly this tribunal finds as follows:

That the claimant repudiated the contract of employment when it refused to be reinstated.

That the claimant was unlawfully dismissed when the respondent failed to follow due process to terminate the contract of employment.

The claimant cannot be reinstated as it obtained alternative employment.

That the claimant shall be paid its salary and benefits from the date of the reinstate offer by the respondent to the date of it obtained alternative employment.

The appellant’s  grounds of appeal are that

The arbitrator erred on a point of law in concluding that appellant repudiated his contract by refusing to be reinstated and, further made a gross finding on the facts that respondent had genuinely offered appellant reinstatement which amounts to a misdirection at law.

The arbitrator erred at law in holding that reinstatement was no longer an appropriate remedy on the basis that appellant obtained alternative employment and thereby failing to take account of the evidence before him regarding the inferiority of appellant’s subsequent job to that he had with respondent

The arbitrator erred at law in awarding damages from the date of reinstatement offer by respondent to date of obtaining alternative employment instead of calculating same from date of initial dismissal.

On these grounds the appellant prayed that the arbitral award be set

aside  and be substituted with the following

That the claimant was unlawfully dismissed when the respondent failed to follow due process to terminate the contract of employment.

That respondent be and is hereby ordered to reinstate the appellant to his former without loss of salary and full benefits calculated from date of reinstatement to date of dismissal.

In the event that reinstatement is no longer an option, appellant shall be paid his salary and benefits from the date of dismissal to date of obtaining alternative employment as damages in lieu of reinstatement.

The respondent in response submitted that

The appeal raises questions of fact

The appellant has not laid any basis for the impeachment of the arbitrator’s award.

In the circumstances therefore the respondent prayed for the dismissal

of the appeal with costs on a legal practitioner and client scale.

To start with Section 98 (10) of the labour Act states that

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

The appellant has raised issues of reinstatement and allowances.  The court is therefore going to decide whether they are factual findings or questions of law.

In the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 the questions of law was described as follows

“The term “question of law” is used in three senses.

First it means “a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.”

Second it means “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.

And Third any question which is within the province of the judge instead of the jury is called a question of law.  This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors…”

The arbitrator first considered what the law says about reinstatement as stated in the case of Standard Chartered Bank  Zimbabwe v Matsika 1997 (2) ZLR 389.

In the case it was established that the following points have to be considered

The employee is entitled to be replaced in his post.

There is no obligation on the employer to provide work.

The employer must continue to remunerate him upon the tender of his services.

The employer is to restore him to the payroll with effect from the stipulated date.

The arbitrator found that the appellant was informed about the decision

to reinstate him but he refused to resume duties.  As a result the arbitrator found that the respondent in terms of the law cannot be faulted.

Arbitrator Mawire also found that appellant was restored to the payroll although he said that “certain perks… were never restored.  The certain perks he was referring to was school fees allowance.

There has also been on exception on the issue of question of law.  It has been established that misdirections of fact can be held as misdirections on questions of law.   A case in point is Cold Storage Compnay v Keepstone Tsvande SC 33/09 where the Supreme Court held that

“The position is now well settled that a serious misdirection on the facts can amount to a misdirection in law.  The nature and circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection.  In other words the decision must have been irrational, in the sense of it being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion -

See Hama v National Railways of Zimbabwe 1996 (1( ZLR 664 at 670 C – D.”

Upon a careful consideration of the arbitrator’s findings this court is of the view that there was no unreasonableness whatsoever in his findings.  This court agrees with the arbitrator’s findings that

“In the final analysis, it was clear to this tribunal that the factual and legal position was that the claimant (appellant) chose to refuse to be reinstated

without any factual or legal justification.  The claimant (appellant) frowned upon a genuine offer of reinstatement.  Thus the tribunal finds that the claimant repudiated its contract of employment by refusing to go back to work when called upon to do so.”

Furthermore the appellant has not established any fact that warrants this court to interfere with the arbitrator’s findings.  The appellant has not shown in what way that he did not prove how his subsequent job was inferior to his job at the respondent.

In the circumstances therefore this court finds that the appeal lacks merit.

Accordingly the appeal be and is hereby dismissed with costs.

Atherstone & Cook, appellant’s legal practitioners

Wintertons, respondent’s legal practitioners