Guard Alert Security (Pvt) Limited v Norbert Tangira

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/08/2013
HELD AT HARARE ON 16 OCTOBER, 2012 CASE NO. LC/ H/384&595/2011
In the matter between




GUARD ALERT SECURITY (PVT) LIMITED                         –    Appellant
And

NOBERT TANGIRA                                             –    Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - Mr B. Chidziva (Legal Practitioner)
For Respondent     - Mr D.C. Kufauwenga (Legal Practitioner)




MATANDA-MOYO, L.

      This is an appeal against an arbitrator’s decision barring Appellant from

reinstituting proceedings against the Respondent. The brief facts are that the

Respondent was employed by the Appellant as a Regional Manager based at

Bindura. Respondent was charged for contravening sections 4(a) and 4(b) of

Statutory Instrument 15of 2006 and was found guilty and dismissed from work.

The matter was subsequently referred for conciliation where a certificate of

settlement was issued.    Respondent was reinstated to his original position

without loss of salary or benefit. The Appellant suspended the Respondent from

employment on the same charges. Respondent was tried and found guilty. He

was dismissed from employment. The dispute was referred for arbitration. The

arbitrator found that the initial certificate of settlement was unconditional and

the Appellant was barred from instituting further proceedings against the
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Respondent.        The   Arbitrator   ordered   Respondent’s   reinstatement   or

alternatively payment of damages in the sum of $56 520-00.




The grounds of appeal are as follows;



   1. That the Arbitrator erred and misdirected himself in law in finding that

      the certificate of settlement was unconditional and was intended to

      prevent the Appellant from undertaking disciplinary action against the

      Respondent.

   2. That the Arbitrator erred in concluding the matter on a technicality and

      not on the merits. Labour matters are not decided on technicalities but

      on merits.

   3. That the Arbitrator erred at law in proceeding to determine quantification

      when he had made an earlier decision on reinstatement.

   4. That the Arbitrator erred in awarding Respondent the fuel benefit and in

      calculating cost of fuel at $1.50.

   5. That the Arbitrator erred in granting cash in lieu of leave in the sum of $9

      600-00. Respondent was not earning the monthly rate used to come up

      with such figures.



Appellant prayed that Appellant’s dismissal be confirmed or that damages be

adjusted to reflect a total of $1 395.00.



   Respondent submitted that the appeal on the merits of the case is

improperly before this court. Respondent argued that the initial award by the
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Arbitrator of the 28 April 2011 was an interim order which could not be

appealed against.



The order read;
   ‘(a) the claimant was unfairly dismissed and should be reinstated with full benefits and salaries
   with effect from the date of unfair dismissal.
   (b) in the event that reinstatement is no longer tenable, the parties must agree on quantum of
   damages and in event of failure to agree within 14days of this award on aggrieved party may
   apply for quantification.’



   Respondent submitted that the above order was not final, hence, Appellant

could not appeal on it. Respondent prayed that Appellant’s appeal in case No

LC/H384/11 be dismissed as it was noted prematurely.



   I do not agree with the Respondent’s submission. The order granted by the

Arbitrator above is final in nature. The order was granted after going into the

merits of the matter.            The Arbitrator made a conclusive finding that the

Respondent was unfairly dismissed.                  That issue of unfair dismissal was not

subject to revisitation by the Arbitrator.                  There was therefore nothing

temporary in the order granted by the Arbitrator vis-à-vis the lawfulness of the

dismissal. The Arbitrator was no longer seized with dealing with the lawfulness

of the dismissal.           See Mankowitz vs Lowenthal1982 (3)SA758(A) and

Nyikadzino vs Asher and others 2009(1) ZLR174(H), Blue Ranges Estate (Pvt)

Ltd vs Mudururi and Another 2009(1)ZLR368(5). It is my finding that the order

by the Arbitrator is final and definitive and can be appealed upon.

Quantification is a different subject to the lawfulness of the dismissal and the

fact that the issue of quantification was yet to be determined had no effect on


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the finality of the lawfulness of the dismissal. The appeal is therefore properly

before the court.



    Let me now proceed to deal with the grounds of appeal as raised by the

Appellant.     Appellant submitted that the Arbitrator erred and misdirected

himself in finding that the certificate of settlement was unconditional and was

meant to prevent the Appellant from reinstituting the same proceedings. The

said certificate read;


   “Employee has been reinstated back to his original position as the Regional Manager at Bindura
   with immediate effect, without loss of pay and benefits. Employer will produce to the Labour

   Officer a letter of assurance on 23-07-07 that reinstatement is without prejudice” .



   The Arbitrator found that such settlement was unconditional. He found that

it was meant to put the Respondent in his original position and at the same time

barring reinstitution of further proceedings on the same issues. Such findings

by the Arbitrator relate to facts and in terms of section 98(10) of the Labour Act,

cannot be appealed against. The Appellant has not suggested that such factual

findings are grossly unreasonable or irrational such that, no court, which had

applied itself to the evidence in question, would have come to the same

conclusion. Accordingly the ground of appeal is misplaced.



   Appellant also submitted that the Arbitrator erred in concluding the matter

on a technicality. The above is not a technicality referred to in Dalny Mine vs

Banda 1999(1) ZLR 220 case. The Arbitrator found that the settlement was

reached unconditionally. As such Appellant was barred at law from reinstituting

the same charges. I agree.

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   The Appellant submitted that the Arbitrator was not permitted at law to hear

an application for quantification of damages. When he made the initial order

above he became finctus officio. In terms Labour Act (chapter 28:01) the Arbitrator

had to specify in the alternative an amount of damages to be awarded to the

Respondent. It follows therefore that the Arbitrator has a right to hear and

determine the damages as an alternative to his /her reinstatement.                            The

Arbitrator does not become functus officio when he pronounces the lawfulness or

otherwise of the dismissal.             The Arbitrator concludes the matter upon

quantification of damages.



      The Arbitrator’s initial order on pages 38-89 of the record reads;


      “I award as follows:-
             a) The claimant was unfairly dismissed and should be reinstated with full benefits and
             salaries with effect from the date of unfair dismissal.
             b) In the event that reinstatement is no longer ,the parties to agree on quantum of
             damages and in the event of failure to agree within 14days of this award an aggrieved
             party may apply for quantification.’’



   The order clearly showed that any aggrieved party could approach the

Arbitrator for quantification. If find the argument by Appellant not persuasive

at all. An arbitrator remain seized with the matter until after quantification.

The submissions by the Appellant that Respondent repudiated his contract by

refusing to take up employment is not supported by evidence. Firstly a party

should establish the facts either on paper or orally before making submissions

on that point. Herein I have not found any basis for such submission by the

Appellant.

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  The Appellant challenged the figures used by the Arbitrator in coming up with

  the payment of the fuel benefit. Appellant also challenges the figures used to

  determine leave pay.            It is common cause that an appeal against

  quantification attacks the factual findings of the Arbitrator. Appeals from the

  decision of an Arbitrator are only on points of law.



     In the case of Madyara vs Globe and Phoenix Industries (Pvt) Limited

t/a Ram Mine SC58/01 Sandura JA quoted with approval the decision by

McNally JA in Leopard Rock Hotel Company (Pvt) Limited vs Van Beek 2000(1)

ZLR251(S) at 256 B-C where he said;


             ‘a ruling by the Tribunal on damages is a ruling on fact and thus unappealable unless
             it can be categorized as wholly unreasonable.       This may (but not must) be the
             situation where the Tribunal has misdirected itself on the law as to the criteria to be
             taken into account in assessing damages.”



   The damages awarded by the Arbitrator in the present case cannot be

categorized as wholly unreasonable.                Accordingly the appeal relating to

quantification is not properly before this court.




Accordingly it is ordered as follows;

   The two appeals lack merit and are hereby dismissed with costs.


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Kantor and Immerman Legal Practitioners – Appellant’s Legal Practitioners

Dzimba, Jaravaza and Associates - Respondent’s Legal Practitioners




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