Israel Nyaruwata v Croco Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/394/16
HELD AT HARARE
12 MAY 2016
CASE NO
JUDGMENT NO LC/H/394/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/394/16

HELD AT HARARE 12 MAY 2016				CASE N O LC/H/758/15

& 23 JUNE 2016

In the matter between:

ISRAEL NYARUWATA					Appellant

And

CROCO HOLDINGS (PVT) LTD				Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mrs R Peters (Legal Practitioner)

For Respondent		Mr T Chagudumba (Legal Practitioner)

MURASI, J:

At the conclusion of the oral submissions, this court dismissed the appeal stating that the reasons would follow.  The following are the reasons.

Appellant was employed by the respondent as branch manager.  Following allegations of misconduct, appellant was brought before a Disciplinary Committee.  The said committee found him guilty and recommended his dismissal.  Appellant appealed against this decision to the Appeals Committee which committee dismissed the appeal and upheld the decision of the Disciplinary Committee.  Two years down the line, appellant brought his matter to the Labour Office and the matter finally landed in arbitration.  The arbitrator dismissed appellant’s claim and the appellant has approached this court for relief.

Appellant’s ground of appeal is couched as follows:

“The arbitrator grossly erred and misdirected himself by making a finding that he has no jurisdiction by factor of prescription yet the unfair labour practice of the respondent’s failure to provide an appeal determination was of a continuing nature at the time the matter was referred to a labour officer.”

Mrs Peters, for the appellant submitted that the matter had not prescribed as the appellant had only been availed with the decision in March 2015.  She further submitted that appellant had referred the matter to the NEC in Masvingo, but it was unfortunate that the proceedings could not be concluded as appellant had relied on the initial determination made in January 2013.  It was argued that the appellant was not in a position to pursue the matter as he did not have the determination of the Appeals Committee.  It was further stated that appellant had not been given a copy of the determination and therefore the  matter could not have been deemed to have prescribed when he did not have a copy of the determination.  It was further submitted that the failure by the respondent to avail the decision of the Appeals Committee amounted to an unfair labour practice as this had hindered the appellant from prosecuting his matter.

Mr Chagudumba, for the respondent, stated that the decision of the arbitrator was correct in the circumstances.  It was submitted that when the appeal was heard on 6 February 2013, appellant had been given the determination of this hearing.  This was the reason that he had approached the NEC in Masvingo.  He was aware of the outcome of the hearing before the Appeals Committee.  It was further argued that if appellant had not received the determination within the prescribed period as provided in the Code of Conduct, he was therefore at liberty to utilise the provisions of section 101 of the Labour Act [Chapter28:01].  This the appellant had not done.  It was further submitted that section 101 did not require that a litigant should have a determination.  Mr Chagudumba further argued that the alleged actions of the respondent did not amount to unfair labour practice as envisaged in the Act.  It was submitted that appellant had been provided with the Appeals Committee’s determination, and that even if he had not been so provided, the appellant had not utilised the avenues open to him.  The respondent had not done anything to forestall the appellant to find recourse in terms of the law.

It is trite that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a misdirection.  It was stated thus in Chioza v Siziba S 4/15:

“The court a quo made factual findings in this regard.  The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court…”

In casu, the appellant was enjoined to demonstrate that the arbitrator’s understanding of the facts and the decision he arrived at was unreasonable in the circumstances.  It is common cause that appellant had been convicted by the Disciplinary Committee.  It is also conceded that a hearing was conducted by the Appeals Committee on 6 February 2013.  It is also not in dispute that appellate went to a different forum  the NEC in Masvingo, after the Appeals Committee’s hearing of 6 February 2013.  It is common cause that the matter was brought to the labour officer some two years after the hearing of the Appeals Committee on 6 February 2013.  Without even seeking to understand the reasons for the late referral to the Labour Office,  the dispute was brought to the attention of the labour officer after the prescribed two years in terms of section 94 of the Labour Act.

Appellant has advanced his main reason as being the non-availability of the determination of the Appeals Committee.  The puzzling question is, if he was not aware of the outcome of the Appeals Committee, why did he approach the NEC in Masvingo?  His approaching that office leads to the inescapable conclusion that he was aware of the outcome of the hearing of 6 February 2013 by the Appeals Committee.  Further, as argued by respondent, the absence of the determination would not have stopped the appellant from utilising the provisions of section 101 of the Act.  The arbitrator made a finding that he did not have jurisdiction because the matter had prescribed.  It is a truism that the issue of prescription is regarded in law to be an important one to the extent that the common law position on prescription has been legislated in most civilised jurisdictions.  In Murray & Roberts (Cape) v Upington Man 1984 (10 SA 571, the following was said about prescription at 578 F:

“Although many philosophical explanations have been suggested for the principles of extinctive prescription.. its main practical purpose is to promote certainty in the ordinary affairs of the people.  Where a creditor lays claim to a debt which has been due for a long period, doubts may exist as to whether a valid debt ever arose, or, if it did whether it has been discharged.  The alleged debtor may have come to assume that no claim would be made, witnesses may have died, memories would have faded, documents or receipts may have been lost,  etc.   The sources of uncertainty are reduced by imposing a time limit in the existence of a debt, and the relevant time limits, reflect, to some extent, the degree of uncertainty to which a particular type of debt is ordinarily subject.”

The above sentiments were expressed when dealing with extinctive prescription.  I am of the view that they equally apply to matters of jurisdictional prescription as in this case.  The arbitrator was of the view that based on the facts of the case, the appellant had not prosecuted his case as required in terms of section 94 of the Labour Act.

Appellant has raised the issue that the respondent’s actions of withholding the determination of the Appeals Committee, amounted to an unfair labour practice.  I agree with the submissions of the respondent that there was no unfair labour practice in that appellant was not “hindered, obstructed or prevented” to exercise his rights in terms of the law.  As already alluded to, the utilisation of section 101 of the Act did not require that appellant should have had the determination of the Appeals Committed in question.

In the result, the court is of the view that the appellant has not demonstrated that the arbitrator’s decision was faulty in the circumstances and the appeal ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, be and is hereby dismissed.

The decision of Honourable Kazembe be and is hereby upheld.

Each party to bear its own costs.

J Mambara & Partners, appellant’s legal practitioners

Atherstone & Cook, respondent legal practitioners