Ethiopian Airlines v Standrick Mahachi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/315/14
HELD AT HARARE 5TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/315/14

HELD AT HARARE 5TH  MAY 2014			CASE NO LC/H/179/11

& 6TH JUNE 2014

ETHIOPIAN AIRLINES					Appellant

STANDRICK MAHACHI					Respondent

Before The Honourable G Musariri, Judge

For Appellant		Ms M Khumalo, Attorney

For Respondent		Mr C Mucheche, Attorney

MUSARIRI, G:

Appellant appealed to this Court against an arbitration award made in favour of Respondent.  The grounds of complained that,

“1.	The Arbitrator erred and misdirected himself in law by concluding that the Respondent exercised reasonable skill, due diligence and care in the execution of his duties.

2.	the Arbitrator erred and misdirected himself in law in interpreting the Respondent’s letter of promotion of 1st December2000, in particular, by concluding that the Respondent cannot be held to have exhibited gross incompetency or inefficiency in the performance of his duties when his contract of employment did not oblige him to check in passengers.

3.	The Arbitrator erred in law in concluding that the Disciplinary Committee’s finding of guilt was without merit.

4.	The Arbitrator erred and misdirected himself in finding that the penalty of

dismissal was inappropriate, the Disciplinary Committee should have meted out an educational disciplinary action first.”

Respondent opposed the appeal.  The opposition rested on two (2) planks.  Firstly it was submitted that the appeal does not raise points of law and as such falls foul of section 98 (10) of the Labour Act [Chapter 28:01].  Secondly it was submitted that the Arbitrator correctly found that the charge of incompetence was not proven.  Thus, Respondent argued, there was no cause for the  appeal.

I am persuaded by Respondent’s submissions.  The grounds of appeal do not raise a point of law.  Why?  They do not invoke a statutory provision.  Neither do they rely on a point decided by our courts.  In other words they are grounded in neither statute nor precedent.  Rather they quibble about factual findings.  The heart of Appellant’s case is captured in the 1st ground.  It complained that the Arbitrator wrongly found that Respondent exercised “reasonable skill due diligence and care in the exercise of his duties.”  The complaint relates to a factual findings.  To convert such finding to a question of law requires an allegation of a “gross misdirection.”  This position is consonant with precedents like the case of Mutasa v Cagar 2009 (2) ZLR 327 (S) where at p 331 B Sandura JA (as he then was) quoted an earlier case thus,

“it is true that this court only has jurisdiction to hear an appeal from the Tribunal on a point of law…  But clearly if there is a serious misdirection on the facts that amounts to a misdirection in law.”

(The underlining for emphasis is mine.)

Respondent in casu failed to allege a gross or serious misdirection on the main issue. Grounds 2 & 3 are an elaboration of the 1st ground.  Thus I consider that the first 3 grounds do not raise a point of law.

The last ground of appeal is also couched in terms which raise a matter of fact.  Whether or not dismissal was the appropriate penalty is a matter of fact.  It is determined taking into account all the circumstances of a case.  In any event the question of penalty is largely immaterial in this case because the Arbitrator found in the main as follows,

“I therefore conclude that the finding of guilt by the Disciplinary Committee was without merit.”

In the alternative he found that dismissal was unwarranted in this case.  Since  Appellant failed to file a valid appeal against the main finding, it unnecessary to consider the alternative scenario.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E