Jacob Nebvuma v Trac Parts

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/733/14
HELD AT HARARE ON 15th JULY, 2014
CASE NO. LC/H/133/14
AND 24TH OCTOBER, 2014
JUDGMENT NO. LC/H/733/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/733/14

HELD AT HARARE ON 15th JULY, 2014    CASE NO. LC/H/133/14

AND 24TH OCTOBER, 2014

In the matter between:-

JACOB NEBVUMA 							Appellant

And

TRAC PARTS								Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. S. Mushonga (Legal Practitioner)

For Respondent: 	Mr. G. Gapu (Legal Practitioner)

MHURI J.:

Appellant was in Respondent’s employment as from the 2nd February, 2002 to the 29th October, 2012 when he tendered his resignation.  This is common cause.

On the 28th November, 2012 Appellant referred a complaint of unlawful dismissal to the Designated Agent of the National Employment Council for the Motor Industry who issued a certificate of no settlement.  The matter was subsequently referred to arbitration, the terms of reference being to determine whether or not Appellant was constructively dismissed and the remedy thereof.

The Arbitrator found in favour of the Respondent, dismissed the claim by Appellant which then led to Appellant turning to this Court on appeal.

The appeal is strongly opposed by Respondent, the first ground of opposition being that the grounds of appeal raised by Appellant not being questions of law but questions of fact are invalid and on that basis, the appeal should be dismissed.

It was Appellant’s contention that the appeal is premised on a question of law and is therefore properly before the Court.

Appellant’s grounds of appeal as per his notice of appeal are that:-

the misdirection on the facts by the Arbitrator was so unreasonable that no sensible person who applies his mind to the facts will have come to the conclusion that Appellant resigns on his own accord and that is a serious misdirection on the facts which amounts to a misdirection in law.

The arbitrator failed to appreciate that –

Appellant’s resignation letters clearly state that the reason for resigning was continued intolerable working conditions by the employer.

Respondent was always falsely accusing Appellant of stealing and even dismissed him from employment on 18th May, 2011 and reinstated him in June 2011 … Appellant was arrested beaten up by the police on another false accusation by Respondent which he was acquitted in court.

The arbitrator erred in interpretation of the necessary fear by restricting it to its literal meaning and

Misdirected himself in finding that the Appellant resigned on his own accord.

Erred in finding that the Appellant should have reported intolerable conditions to the National Employment Council for redress.

The arbitrator erred in finding that the Appellant should not be given terminal benefits after working 10 years for Respondent and being constructively dismissed.

Section 98 (10) of the Labour Act [Chapter 28:01] governs appeals brought before this Court.  It is a trite position that appeals to this Court against arbitral awards are to be premised on a point of law.  It is therefore only appeals dealing with legal issues that should be brought before this Court.   Appeals against factual findings are therefore ousted by Section 98(10).  The only exception being that where there is a serious misdirection on the facts that amounts to a misdirection on the law that appeal will be properly before the Court.

MUZUVA V UNITED BOTTLERS (PRIVATE) LIMITED 1994 (1) 	ZLR 217 (S).

As submitted by Respondent, in order to avail himself of this principle, an Appellant must demonstrate both in the grounds and ex-facie the record that there is a serious misdirection on the facts that amounts to a misdirection on the law.  It is not enough to just allege a misdirection but it must be shown that it is a serious misdirection that would amount to a miscarriage of justice.

See –

FLORENCE CHINYANGE V JAGGERS WHOLESALERS

SC 24/2004.

The arbitrator’s term of reference was to determine whether Appellant was constructively dismissed and the remedy thereof.  Both Appellant and Respondent made written and oral submissions and the Arbitrator after analyzing the facts placed before him and considering the law regarding constructive dismissal (Section 12B (3) of the Labour Act [Chapter 28:01], he came to a factual conclusion that Appellant was not constructively dismissed.  He made a factual finding that Appellant had resigned on his own accord.

Were the Arbitrator’s findings so grossly unreasonable that no sensible person properly exercising his mind would have arrived at such a decision?

The arbitrator found that:-

The Appellant wrote resignation letters voluntarily, it being common cause that he wrote the letters.

There was no duress or coercion exerted on Appellant.

Appellant’s averment that he was made to sit for 2 months without being given any work to do, was incredible.

That he reported for work on the 18th July and not 11th July, 2011.

He resigned to avoid disciplinary proceedings.

He did not give the required 3 months notice before his resignation.

The answer in my view is in the negative.

I agree with Respondent’s Counsel, that the restatement of the law as was done in the Appellant’s 1st ground of appeal does not make it a ground of appeal.

In the rest of the grounds of appeal, it cannot be said that there was a serious misdirection on the facts by the Arbitrator to qualify this appeal to be properly before this court.

In the result, the appeal must be struck off.

Accordingly it is ordered that it be and is hereby struck off with costs.

Mushonga and Associates–Appellant’s Legal Practitioners

Scanlen and Holderness–Respondent’s Legal Practitioners