Fabian Jacha v Savanna Tobacco Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO, LC/H/167/2014
HELD AT HARARE ON 4 NOVEMBER, 2013
CASE NO. LC/H/281/2013
JUDGMENT NO, LC/H/167/2014
---------




IN THE LABOUR COURT OF ZIMBABWE    	 JUDGEMENT NO, LC/H/167/2014

HELD AT HARARE ON 4 NOVEMBER, 2013		CASE NO. LC/H/281/2013

&28 MARCH 2014

Inthe matter between:-

FABIAN JACHA						-	Appellant

And

SAVANNA TOBACCO COMPANY			-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Appellant	-	In Person

For Respondent	-	Mr T. Nyamasoka (Legal Practitioner)

CHIVIZHE  J,

This is an appeal against an arbitral award dated 7 January 2013 the operative part of which reads as follows:

“1.	The Respondent did not commit an unfair labour practice by not renewing Claimant’s contract.

2.	Claimant’s claim of unfair dismissal is therefore dismissed for lack of merit.”

The material background facts are as follows;

The Appellant was employed by the Respondent in the capacity of General Hand. He was employed on the basis of continuous fixed term contracts from 2005 to 2011.  The fixed term contracts were for three (3) months each.  In 2007 his contract was terminated and for two years he was not employed.  He was then re-engaged in 2009.

The last fixed term contract between the parties ran from 1st April 2011 to 31 December 2011.  The Appellant was involved in an accident in 2011 resulting in him being on paid leave from September 2011 to December 2011 whilst undergoing treatment.  On the 16th January 2012 the Appellant was advised of the Respondent’s decision not to renew his contract of employment.  The Appellant felt aggrieved and referred his claim to a labour officer.  The matter was subsequently referred to an Arbitrator whose terms of reference were then outlined to be;

To determine whether or not the employer had committed an unfair labour practice by not renewing claimant’s contract of employment.

To determine the appropriate remedy.

The Arbitrator after considering submissions by both parties handed down an award in the terms referred to supra. The Appellant still dissatisfied then noted the present appeal.

The appeal has been noted on the following grounds of appeal:

“1.	The arbitrator followed suit of Savanna’s attitude of frustrating my stance on pressing charges of unfair labour practice against them by condemning my representation along the case. The arbitrator misguided me at the last minute by condemning my representatives (The Labour Relations of Zimbabwe) and instructed me to engage Mr Gadaga to represent me, who was in his office and his personal friend and a former labour officer consultant.

For the course of arbitration I only submitted one written submission and Savanna responded with one submission. Savanna’s submissions had a number of false information and irregularities and the arbitrator did not give me a chance to support my merit because there was no verbal presentations or a cross examination carried out up to the award.

FOR EXAMPLE

I never received the letters of notification of expiry of contract which were enclosed in Savanna’s submissions.

There was no certificate of fitness duly issued in 2010 as stated by Savanna instead I was issued the certificate of fitness by the company’s doctor on 9 January 2012 of which I presented to Savanna human resources department on the same day.

The arbitrator did not give me a chance to prove that I was duly sidelined as the selection of non-renewals was bent to discriminate me indirectly due to my injury and there was definitely an engagement of workers some of them new on 7 May 2012.

There was negligence to the accident and the company is trying to neglect responsibility to my situation as the effect of the injury is making it difficult for me to secure another employment.

The arbitrator clearly showed favour to Savanna because he gave Savanna the award the day after finalizing the award (11 January 2013) and he only gave the award to me on 3 April 2013 after I persisted.”

The Respondent having taken a point inlimine that as presently couched he appeal does not raise questions of law I am obliged to address that point initially.Section 98(10) of the Labour Act [Cap 28:01] enjoins that an appeal against an Arbitrator’s decision be restricted to questions of law only.  What is a question law was considered in Muzuwav United Bottlers P/L 1994 (1) ZLR 217 (S) and followed in Sable Chemicals Industries Ltd  vDavid Peter Easterbrook SC-18-10.

Does the present appeal raise questions of law? In order to address the point it is necessary to examine in detail the grounds of appeal. The grounds have been presented in narrative form. The Appellant being a self-actor the court has chosen to overlook that. There are basically two grounds raisedbefore the court.  Both grounds however have a common thread running through them which is that the Appellant contends that the Arbitrator was biased against him as a party to the proceedings.

The first ground therefore attacks the decision on the basis that the Arbitrator denied him the right of representation in that the Arbitrator allegedly condemned the Appellant’s own representativeand instead recommended a representative of his own choice

The second ground again persisting with the bias element attacks the Arbitrator’s decision on the basis that the Arbitrator allegedly determined the issues before him only on the basis of written submissions and he disallowed oral submissions.

I am satisfied, applying the principles as outlined in Muzuvadecision and also followed in Sable Chemicals matter that the present appeal does not raise questions of law.  Instead the grounds appear to be raising procedural issues which the Appellant ought to have raised in a review rather than an appeal.  The Appellant being a self-actor the distinction between the two may be lost on him. The Appellant can however seek legal advice.In the absence of a proper application for review filed, whether on its own or simultaneously with an appeal in terms of Rule 15 (3) of the Labour Court Rules, 2006 I am constrained to determine the issues as raised.There is consequently no appeal before the court.  The matter is struck off the roll with no order as to costs.

Atherstone& Cook, respondent’s legal practitioners