Elizabeth Glasier Pediatric AIDS Foundation v Fenny Mwazozo & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/154/2016
HARARE, 15 OCTOBER 2015
CASE NO. LC/H/342/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/154/2016

HARARE, 15 OCTOBER 2015			CASE NO. LC/H/342/15

AND 18 MARCH 2016

In the matter between:-

ELIZABETH GLASIER PEDIATRIC			Appellant

AIDS FOUNDATION

And

FENNY MWAZOZO					1st Respondent

And

DZINGIRAYI DINGWIZA				2nd Respondent

Before Honourable L. Kudya, Judge

For Appellant		P Chakasikwa (Legal Practitioner)

For Respondents	K. Gama (Legal Practitioner)

KUDYA, J:

This is an appeal against the arbitrator’s decision where she ruled that appellant employer had underpaid respondent’s employees’ gratuity when it used the industry code calculations as opposed to the model contained in the employees’ handbook forming part of the contract and which contained more favourable provisions.

The background to the matter is that the respondent employees who were in the appellant’s employ had their contracts terminated by efluxion of time.  Their contracts were to be read in conjunction with a handbook which provided for among other issues the provision or gratuity or severance upon the expiration the contract.

When the appellant paid the respondents their dues it used the industry code formula of calculating gratuity instead of using the model contained on the workplace handbook.  This irked the employees and drove them to arbitration where the arbitrator ruled in their favour.  The employer was dissatisfied by the arbitral award and decided to appeal to the Labour court, which appeal is the subject matter of this judgment.  Respondent employees in turn opposed the said appeal.

The appeal is based on these grounds:-

Arbitrator grossly misdirected self to hold that employees were entitled to gratuity in terms of the employment handbook and contract yet the handbook did not provide for gratuity but instead payment of severance where contract terminated before expiry which was not the case in the matter at hand.

Arbitrator grossly misdirected self in concluding that the respondents were not aware of the charges made to their employment contracts and manual and such a misdirection was grossly unreasonable that it constituted a misdirection at law.

In the result the appellant prayed that the appeal succeeds with costs and that the arbitral award be set aside and be substituted by an order that there was no underpayment by the employer and that the respondents are only entitled to gratuity as per the Industry Code.

In response to the appeal the respondents maintained that:-

Reference to the payment in the handbook as severance benefits does not alter the fact that it is a gratuity.  Even if it were styled severance amounts due and payable to respondents would not change.  The matter is therefore academic.  It is incorrect to state that severance only payable before expiry of contract.  Manual clauses demonstrate that such was not so see 6.5.3 and 6.5.5 of the manual.

Appellant failed to tender proof that it delivered to the respondents the notices of the changes to the handbook.  It would be outrageous to suggest that arbitrator should have found that such service was effected yet there was no evidence to that effect.  Besides, a contract cannot be unilaterally varied.

In the result the respondents prayed that the appeal be dismissed on an attorney and client scale for lack of merit.

Each of the appeal grounds will be addressed below:-

It is noteworthy that the law is clear that the appellate court would only interfer with factual findings of the tribunal below on exceptional cases.  The case of Nyahondo v Hokonya 1997 (2) ZLR 475 (SC) is instructive in this regard. Besides, appeals from arbitration are primarily on points of law and not fact except when the factual conclusions be styled outrageous see Hama v NRZ 1996 (1) ZLR 664 (SC)

Ground 1

A reading of the oral submissions by the parties, the parties’ heads of argument and the arbitral award together with the cuttings from the handbook speak to one irrefutable fact that the use of the terms gratuity and severance could be interchanged.  What was categoric was that such payment was however not due to a person whose contract had been terminated due to misconduct.  See 6.5.3 of the handbook.  The court is therefore not persuaded that the arbitrator erred to conclude as he did that the respondents had to be paid as per the handbook.  The ground therefore lacking in merit should fail.

Ground 2

As regards the issue of the communication of the amendment it need be noted that this is patently a factual issue.  Facts of the matter as presented to the arbitrator failed to demonstrate clearly to him the fact that the communication which the employer claimed got to the employee indeed got to them.  There were a number of variables that emanated from the evidence on that note one being that the loan information could have been gotten from colleagues.

What is clear is that on the basis of what was presented before the arbitrator the court has no cogent basis for faulting the arbitral findings.  In the result the court is not persuaded that a good case on appeal has been made out by the appellant on account of this ground.  The ground should therefore fail.

As regards costs there is nothing which was placed on record to justify punitive costs and court is not persuaded that a punitive order is called for.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirely it be and is hereby dismissed with costs on the normal scale.

The arbitrator’s award is to stand.

Kantor & Immerman, appellant’s legal practitioners

Gama & Partners, respondent’s legal practitioners