Kabungaidze v Midsec (Pvt) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/405/2013
HELD AT HARARE ON 23rd MAY, 2013
CASE NO. LC/H/419/2011
& 27TH SEPTEMBER 2013
JUDGMENT NO. LC/H/405/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/405/2013

HELD AT HARARE ON 23rd MAY, 2013	    CASE NO. LC/ H/419/2011

& 27TH SEPTEMBER 2013

In the matter between

KABUNGAIDZE			–		Appellant

Versus

MIDSEC (PVT) LIMITED		–		Respondent

Before The Honourable L. Hove , Judge

For Appellant : Miss P. Kashiri (Legal Practitioner)

For Respondent: Mr Chimwamurombe (Legal Practitioner)

HOVE J:

The Appellant alleges that he was employed in 2002 as an Investigation Officer. In 2005 he was moved to Operations were he was promoted to Area Controller doing managerial duties.

He further alleges that the employer continued to pay him the salary of an Investigation Officer and he complained against this unfair labour practice. The employer then verbally promised to regularize the issue but the employer never did.

The Appellant left the Respondent’s employ in 2008 and his claim is for the difference between the salary he received and that of an Area Manager. He also claimed his terminal benefits.

To prove his claim that he had been promoted, the Appellant submitted that he had been given a company vehicle like other Managers and his duties were those of an Area Manager.

The Respondent denied that the Appellant was ever promoted to the position of an Area Manager. They do not deny that he had a company vehicle but they allege it was just an arrangement to facilitate him driving other workers to and from work and not that the vehicle had been given because he had been promoted.

The Arbitrator found as a matter of fact that the Appellant had not proved that he indeed had ever been promoted to the post of an Area Manager. The Arbitrator considered the definition of a Manager in terms of the Labour Act, [Chapter 28:01] (the Act) which defines a Manager as:

“ ... an employee who by virtue of his contract of employment or of seniority in an organization may be required or permitted to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge the grievance of other employees”

Considering the evidence placed by the Appellant before her, the Arbitrator found as a matter of fact that the Appellant was not a managerial employee. She dismissed the Appellant’s claim of unfair labour practice.

The employee was not happy. He appealed to this Court and alleges that the Arbitrator grossly misdirected herself when she failed to properly assess the evidence placed before her when she found that the Appellant was not a managerial employee in this regard, the Appellant prayer was that he be found to have been appointed to a managerial position in August 2005.

Appeals to the Labour Court against decisions of Arbitrators are on points of law. In casu, it is clear that the appeal is not on a point of law but the Arbitrator’s factual conclusions are the one’s under attack. The Appellant alleges that the misdirection on facts was so serious as to amount to a misdirection on a point of law.

The issue for this Court to decide is therefore whether the Arbitrator’s conclusion of facts was grossly unreasonable. If it was then the Court can interfere with her findings but if not, the Court cannot interfere.

The Appellant’s claim is that he was promoted to the position of an Area Controller pending being appointed to the position of Area Manager but the employer promised verbally but never really did promote him to that position.

Page 30 of the record is a Memo from the Appellant in which he responds to a query in relation to a grievance he had raised.in that letter in the third paragraph from the bottom, the Appellant says he was supposed to sign a document pertaining to his conditions of service on appointment to Area Manager but this was never done.

The Appellant may have been promised that he would be promoted but the employer never got around to actually promoting him.

On page 31, Appellant states that he raised a query on a number of occasions and the employer kept shifting posts and giving false promises.

In my opinion the employer promised but never actually promoted the Appellant to the position of an Area Manager.

The employer is alleged to have allocated to the Appellant the duties of an Area Manager. The Appellant does not show that what he did was different from the duties of a Security Officer. He did not prove that his duties were those of an Area Manager. The Arbitrator assessed the duties against those listed or defined in the Labour Act and found that the Appellant was not performing the duties of an Area Manager. I do not believe that the Arbitrator’s conclusion of facts was grossly reasonable. Her conclusion found support in the definition contained in the Act. Someone else could have assessed the facts differently, but I find that her conclusion was not grossly unreasonable. There is thus no basis for this Court to interfere with her conclusion of facts in this regard. The Appellant himself says he never was promoted, “the employer kept shifting posts and giving false promises”.

The Appellant also challenged the Arbitral Award on the basis that the Arbitrator had failed to quantify appellant’s terminal benefits because they were in Zimbabwean dollars.

The Arbitrator however directed and ordered that the parties should agree on the quantum of terminal benefits owed, to the claimant. She ordered that in the event that the parties failed to agree on what was due and payable as terminal benefits, then either of the parties could approach her for quantification.

The Arbitrator did not therefore fail to quantify. She referred the matter back to the parties for them to first try and agree on the quantum. If the parties failed to agree, either of the parties could approach her to enable her to quantify. This is what the parties should do.

The appeal is thus found to be without merit.

The arbitral award is upheld.

HOVE J

JUDGE – LABOUR COURT

Thondlanga & Associates – Appellant’s Legal Practitioners

Danziger and Partners – Respondent’s Legal Practitioners