Energy Deshe v F.B.C. Bank

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/47/2013
HELD IN HARARE, FEBRUARY 7, 2013
CASE NO. LC/H/437/2010
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/47/2013

HELD IN HARARE, FEBRUARY 7, 2013		          CASE NO. LC/H/437/2010

In the Matter Between

ENERGY DESHE					APPELLANT

And

F.B.C. BANK				       		RESPONDENT

Before The Honourable E. Makamure         : President

For The Appellant     		: Mr P. Mutasa (Trade Unionist)

with him Mr Energy Deshe

For The Respondent  		: Mr A.K. Maguchu (Legal Practitioner)

with him Mr Murefu, Human Resources Officer

MAKAMURE E.,

This is an appeal against the decision of an arbitrator.  The appellant was employed by the respondent as a manager at one of its branches.  He was dismissed from the respondent’s employ following disciplinary proceedings for:

“any serious act conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her conduct.”

The following are the grounds of appeal:

The Arbitrator erred at law in concluding that Hon. Matsikidze did not consider the $3.9 sextillion and $5 sextillion cheques, when it is clearly stated in his award that he did consider them and based his award on all the transactions.  Furthermore, the Hon. Arbitrator used the several transactions as several causes of action yet the several transactions were examples and evidence for that one cause of action, which had already been decided on by Hon. Arbitrator Matsikidze.  Had she properly applied her mind she would have noted that the cheques in issue were part and parcel of the notable activities which formed the basis of the charge that was dealt with by Hon. Matsikidze.

The Arbitrator grossly misdirected herself in concluding that “the fact that the cheques were eventually unpaid is neither her nor there.  Had she properly applied her mind, she would have correctly observed that whether or not the cheques had been paid actually formed the basis of the matter as couched in the charges the Appellant faced.

The Hon Arbitrator erred at law in failing to take into account and consider evidence adduced by the Appellant.  The Appellant cited and submitted circular No. 07/2008 issued on 25 September 2008 which contained the latest standing instructions of handling overdrawn accounts, but the Arbitrator instead chose to ignore this vital evidence but quickly considered the respondent’s letter dated 21 April 2008.  This revealed the Arbitrator’s bias in favour of the Respondent.

The Arbitrator erred at law in accepting the respondent’s submissions as fact without calling for evidence to substantiate these bold submissions.  This led her to erroneously conclude that the appellant had given “final confirmation of liability before the client made good of the account”.  Had she sought evidence, she would have correctly observed that confirmation of a cheque deposit is automatically done at the expiry of the four working days clearing period, and not as stated by the Respondent.

The Hon Arbitrator erred at law in concluding that, the appellant repudiated his contract of employment when he sought part time employment with ZOU after his dismissal.  It is trite law that a dismissed employee has a duty to mitigate his losses.

Overally the Hon. Arbitrator depicted a high degree of bias against the Appellant resulting in her failure to consider the Appellant’s submissions and evidence and her taking up the Respondent’s submissions as fact.

The appellant challenges the Learned Arbitrator’s factual findings.  The first five grounds of appeal raise factual issues.  Section 98(10) of the Labour Act Chapter 28:01 (The Act) provides as follows:

“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.”

There is no allegation that there was a serious misdirection by the arbitrator which misdirection amounted to a point of law.

This means that the first five grounds cannot be considered because they fall outside the provisions of The Act.  The sixth ground raises the question of bias.  Bias is ordinarily raised in review proceedings.  This means that the appeal is not properly before this Court.  For that reason the appeal fails.

Accordingly, it is ordered that the appeal be and is hereby dismissed.

Zimbabwe Banks and Allied Workers Union (ZIBAWU), Representatives for the Appellant.

Dube, Manikai and Hwacha, Legal Practitioners for the Respondent.