Freda Rebecca Gold Mine v V Nyoni & 35 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/520/2016
HARARE, 12 JULY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/938/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/520/2016

HARARE, 12 JULY 2016 &				         CASE NO LC/H/938/2014

9 SEPTEMBER 2016

In the matter between

FREDA REBECCA GOLD MINE						APPELLANT

Versus

V NYONI & 35 OTHERS						RESPONDENTS

Before the Honourable Hove J

For the Appellant	C Kwirira (Legal Practitioner)

For the Respondent    C Mudondo  (Trade Unionist)

HOVE J:

This is an appeal against an arbitral award.

The background is that the respondents were employed by the appellant. A dispute arose between the parties. The dispute was that the employer sought to introduce new contracts of employment to supersede the contracts it had with the respondents. The respondents refused to sign the new contracts. The employer then decided to pay those who had agreed to sign the new contracts. The following:

Cafeteria allowance

Production bonus

13th Cheque

Medical allowances

These allowances were denied to those who had refused to sign the new interior contracts.

The respondents brought a claim of unfair labour practice on the part of the employer who was refusing to pay them the same remuneration as their colleagues who had signed the new contracts whose terms and conditions were inferior to the old contracts of employment.

The arbitrator’s terms of reference were:

Whether or not Freda Rebecca Mine committed an unfair labour practice by not paying cafeteria allowance, production bonus, 13th Cheque, medical allowances and all other allowances to V Nyoni & 35 Others and

To determine the appropriate remedy.

The arbitrator found that the employer was discriminating against those employees who had refused to sign the new contract of employment whose terms were inferior to those of the old contract by paying those who had signed the said allowances and denying those who had refused to sign, the same allowances for the same services.

The employer had argued before the arbitrator that the respondents were no longer employees as their contracts of employment were terminated in 2010 when they refused to sign the new contracts.

The arbitrator rejected this argument. He reasoned that the old contracts of employment were never lawfully terminated. The refusing to sign the new contracts was just that, a refusal to alter the existing contract of employment. This refusal did not in any way have the effect of terminating the existent contracts. The employer could have terminated the contracts in terms of law if it so wished but it did not. It assumed that the refusal to sign new contracts had the effect of terminating the old contracts which was wrong in law. Section 12 of the Labour Act [Chapter 28:01] outlines the manner in which contracts of employment can be lawfully terminated but the employer did not comply with the law.

The argument therefore that the respondents were not employees was in my opinion properly rejected by the arbitrator.

Section 12B provides that:

Every employee has the right not to be unfairly dismissed.

An employee is unfairly dismissed—

If, subject to section (3), the employer fails to show that he dismissed the employees in terms of an employment code; or

In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (a).

The issue before the arbitrator was not whether or not they had been unfairly dismissed. The issue was whether or not they were employees of the employer. And the arbitrator after considering the facts come to the conclusion that the facts disclose that there was an employer/employee relationship between the parties.

The next issue that the arbitrator was to deal with was whether or not the employer was committing an unfair labour practice by paying all other employees who had signed the new contract allowances as part of their remuneration and denying those who had refused to sign less by not paying them the allowances.

The employer argued that the allowances were in terms of the new contract and those who had refused to sign the new contracts were not entitled to them as they were not provided for in terms of the old contract.

The only basis for the difference in salary was that others had signed and others had not signed. The arbitrator considered the facts and come to the conclusion that the employer was merely victimizing those who had not signed by denying them the allowance for work of equal value.

The arbitrator therefore concluded that the respondents should be paid the same allowances as their counterparts.

The employer was aggrieved. It noted an appeal to this court. The grounds of appeal are that:

The learned arbitrator grossly misdirected himself on the fact which misdirection constitutes an error in law in failing to dismiss the respondents’ claim for being vague and embarrassing. To be precise, the respondents’ claim did not disclose the following:

The exact cause of action and the factual basis thereof consequently, the arbitrator guessed as to what relief was being sought by the respondents.

The learned arbitrator grossly misdirected himself on the facts which misdirection constitutes an error in law in finding that the respondents were employees of the appellant where no such evidence was placed before him to that effect.

The learned arbitrator erred in law and also grossly himself on the facts which misdirection constitutes an error in law in finding that the respondents are entitled to allowances when there is neither factual nor legal basis upon which the respondents are entitled to such allowances.

The learned arbitrator grossly misdirected himself in law in awarding the respondents allowances without specifying such allowances and the period from which such allowances should be paid.

I will proceed to deal with the issues seriatim.

Whether or not the claim was vague and embarrassing and failed to disclose a cause of action.

In the case of Martin v A G & Anor 1993 (1) ZLR 153 (S).

The court held that whether a request is frivolous or vexations, is whether or not it would constitute an abuse of the process of the court. The court stated that:

“The word “frivolous” connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness. One inconsistent with logic and good sense and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. The word “vexatious” in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed. It is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.”

The arbitrator was not convinced that the claim was frivolous and vexatious. The claimants were being paid less than their counterparts on the basis that they had sought to challenge their employer’s right to unilaterally amend the contract of employment. This could not have been a frivolous and vexations claim. The arbitrator did not find so and his decision in this regard cannot be said to be grossly unreasonable to entitle this court to interfere. There was a clear cause of action, the alleged victimization by the employer in so far as the determination of payment of allowances was concerned. The arbitrator’s decision was not unreasonable let alone grossly unreasonable in this regard.

Whether or not the respondents were employees of the appellant

There had been a contract of employment between the parties (the so called old contract). Nothing was placed before the arbitrator to show that contract had been terminated. The decision by the arbitrator could therefore not be faulted on that basis nor considered unreasonable

Whether or not the respondents were entitled to allowances

The reasoning by the arbitrator was that the respondents were being victimized because they had refused to sign the inferior new contracts which clearly indicated on the face of them that they were contracts of a fixed duration.

His reasoning, even if another court could have found otherwise cannot be termed unreasonable let alone grossly unreasonable.

There is thus no basis established to warrant interference with his decision.

The courts have emphasized that findings of facts by a “trial court” should not be lightly tempered with by a court exercising appellate jurisdiction. The case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 makes it clear that before this court could interfere, the arbitrator must be shown to have exercised his discretion irrationally in view of the evidence placed before him.

It is trite that an appeal court will not interfere with the exercise of discretion unless, as stated earlier, such exercise has been afflicted by a serious misdirection which makes nonsense the decision to grant the discretion in the first place. In the case of Attorney General v Howman 1988 (2) ZLR 402.

It was stated that the principles justifying interference by an appellate court with the exercise of an original discretion are firmly entrenched. It is not enough that the appellate court considers, if it had been in the position of a lower court that it would have taken a different course.

I do not find that the arbitrator was grossly irrational. He did not concern himself with the form of the transaction but with the substance.

In the case of Kilurn v Estate Kilburn 1931 AD 501 at 507 the court held that:

“A court of law will not be deceived by the form of a transaction; it will rend aside the veil in which the transaction is wrapped and examine its true nature and substance.”

I therefore do not find that the arbitrator acted outside the law. The exercise of his discretion, cannot be interfered with by this court.

Finally the court must look at the last ground of appeal, that is:

Whether the arbitrator grossly misdirected himself by failing to specify the allowances and the period.

The terms of reference referred to specific allowances. These were common cause. The parties new which allowances were being paid to those who signed the new contracts and not to those who had not signed. It is an issue that can be easily ascertained by the parties once the arbitrator had reached a decision that the allowances were payable. In the event that there was a dispute and disagreement when quantifying the outstanding allowances, it is in the practice of the labour dispute resolution forums to require that either party can approach the court for quantification. The arbitrator could have quantified and be specific but I do not believe that by not doing so, he acted in a manner that was grossly irrational warranting the interference of this court.

In the result, I find that there has not been established before me, the basis to interfere with the arbitrator’s discretion. I make the following order:

The appeal is dismissed with costs.

Magwaliba & Kwirira, appellant’s legal practitioners