Ekemu Phiri v Shepparton Investments (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/522/14
HELD AT HARARE 24TH JULY 2014
CASE NO LC/H/335/14
& 1st AUGUST 2014
JUDGEMENT NO LC/H/522/14
---------




IN THE LABOUR COURT OF ZIMBABWE  JUDGEMENT NO LC/H/522/14

HELD AT HARARE 24TH JULY 2014          CASE NO LC/H/335/14

& 1st AUGUST 2014

In the matter between:-

EKEMU PHIRI                                APPELLANT

AND

SHEPPARTON INVESTMENTS (PVT) LTD           RESPONDENT

Before The Honourable B.T Chivizhe, Judge

Appellant           In person

For Respondent      Mr S Bhebhe (Legal Practitioner)

CHIVIZHE, J:

In this matter the Appellant appealed against an arbitral award handed down on 14th of April 2014. When the parties before me on the date of hearing the Respondent took two points in limine. The court upheld both points in limine and consequently dismissed the appeal. The court indicated that the reasons were to follow.

The following are my reasons;

The background to the matter is as follows. The Appellant was employed by the Respondent as a Security Guard. He resigned from the Respondent’s employment on the 2nd of July 2013 through a written letter of resignation. The Appellant thereafter lodged a complaint to the Designated Agent at the National Employment Council Transport Operating Industry that he had been forced to resign. Conciliation failed. The matter was consequently referred to arbitration and the Honourable Arbitrator found that the Appellant’s complaint had no merit. The arbitrator consequently dismissed the claim.

The Appellant dissatisfied with the award noted the appeal. His grounds of appeal were present in the form of long and winding narratives. I find it convenient to reproduce same.

” 1. The learned Arbitrator misdirected himself from the onset of the case before him in that, the Applicant’s case that was before him as a term of reference was for the arbitrator to find out

“Whether or not the claimant has a cause of action for his claim and the remedy thereof”

which Applicant issues claimed were three months’ notice amounting to $960.00, gratuity of $5 760.00 and overtime payment of $41 208.00. With these issues before the learned arbitrator, same ignored to deal or even to hear the Appellant’s all issues. When one approached the court for an amicable settlement, it is one’s willingness to adhere to the constitution as a law abiding citizen than putting the law in one’s hands. The learned arbitrator only talked and commented on constructive dismissal all his six pages judgement hereto attached marked Annexure “A” ignoring determining also on gratuity and overtime. Numerically, the Arbitrator only judged of dismissal which is only to amount of $960.00 and ignored determining the other $47 040.00.

The role of the courts is to make justice prevail and I quote the learned arbitrators part of his judgement paragraph 5 on page 4 which reads,

“…issues of payment of gratuity and overtime would have been settled when the claimant resigned of his own free will and cannot be entertained in this Tribunal.”

This clearly means that the learned arbitrator was ever not want to determine the case brought before him. Its applicant’s submissions that it is not easy for one petition the courts on costs for reconciliation whilst there is clear avenue said by Arbitrator to negotiate with the Respondent. This failed thus Applicant coming to court and seek redress. If the tribunal cannot entertain applicant’s case, then who and where to be entertained.

The learned arbitrator erred as far as the principles of evidence and admissibility rules are concerned. The Respondent only alleges in its notice of opposition that they paid Applicant all his dues. Surprisingly, the learned arbitrator reached his judgement basing on that utter surprise without any document tendered before him to support this payment. No payslip or bank transfer to the effect of payment.”

The first point in limine taken therefore was that the grounds of appeal did not raise questions of law. Appeals to the Labour Court against an Arbitral award being on questions of law only it was the Respondent’s counsel’s submission that the appeal was invalid and ought to be dismissed. The Respondent’s counsel further submitted that in the absence of any averment of a gross misdirection on the facts the appeal again stood to be dismissed. The Appellant being a self-actor had no counter submissions to make on the point. He only reiterated the submissions made in his papers that the Arbitrator had misdirected himself that is why he noted the appeal.

The first issue that fell for determination was whether the grounds of appeal raised questions of law. The court was referred to various decisions in which the meaning of the term “question of law” was discussed. It is clear on the basis of decision in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) the term falls into three categories. Firstly it means ‘a question which the law itself has authoritatively answered to exclusion of the right of court to answer the question as it thus fit in accordance with what is considered to be the truth and justice of the matter’. Secondly it means ‘a question as to what the law is. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter’. Thirdly ‘any question which is within the province of the judge instead of jury’ is called a “question of law”.

It is also trite on the basis of National Foods Ltd V Mugadza SC 105/95 that a serious misdirection on the facts amounts to misdirection in law. A misdirection in law of facts amounts to either failure to appreciate a fact or a finding of fact that is contrary to the evidence actually presented (as per Reserve Bank of Zimbabwe V Corrine Gringer & Anor SC 34/01 also aptly referred by Respondent).

In his grounds of appeal the Appellant made no averment or statement that would qualify the grounds as questions of law. He just presented a long and winding narrative in which he raised his disgruntlement with the award. In his first ground of appeal for example he raises the point that the Arbitrator erred by not awarding him three months’ notice pay, non-payment of gratuity and overtime. In his award the Arbitrator concluded that on the basis of the letter of resignation Appellant signalled his intention to resile from the contract of employment. This was a factual finding by the Arbitrator. The Appellant in his grounds of appeal has not raised any question of law arising from the finding. He has also not averred that the Arbitrator misdirected himself on the facts as to amount to question of law.

The purported second ground of appeal apart from repeating the submissions in ground no one is not a ground of appeal. Apart from raising his disgruntlement with the award there was nothing substantive raised in this ground.

The last ground of appeal raised was that the Arbitrator failed to determine the aspect whether Appellant’s claim had been paid or not. The Arbitrator in his award concluded that this issue was not properly raised before him. The basis for his conclusion was that having determined that the Appellant had wilfully signed his resignation letter any claims Appellant had would have been resolved between the points. Against this finding the question as to whether or not the Appellant’s claims had been paid raises a question of fact. It cannot properly be raised in an appeal before the court within the contemplation of Section 98 (10) of the Labour Act [Chap 28:01]. It was the court’s considered view that as none of the grounds of appeal raised questions of law there was consequently no valid appeal before the court. Assuming I was wrong however the appeal would still have failed on the basis of the second point in limine raised by the Respondent.

The point was that the grounds of appeal couched as they were, were not proper grounds of appeal. The grounds were presented in the form of long winding narrative. It is trite that grounds of appeal must be concise and clear in order that the Respondent knows what he has to reply to and the court also appreciates what aspect of decision is being challenged. The court was aptly referred to S vs McNab. It was for these reasons that I dismissed the appeal.

Kantor & Immerman, respondent’s legal practitioners