Kizito Nyamuseva v Overflow Driving School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/822/14
HARARE ON 11th NOVEMBER, 2014
CASE NO. LC/H/980/12
AND 19 DECEMBER, 2014
JUDGMENT NO. LC/H/822/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/822/14

HARARE ON 11th NOVEMBER, 2014			         CASE NO. LC/H/980/12

AND 19th DECEMBER, 2014

In the matter between

KIZITO NYAMUSEVA       					–	Appellant

And

OVERFLOW DRIVING SCHOOL             			–	Respondent

Before The Honourable L. M. Murasi, J.

Appellant 	   :	In  Person

For Respondent:	No Appearance

MURASI, J.

At the conclusion of the hearing, the Court dismissed the appeal stating that the reasons would follow. These are they.

It is worth noting that Respondent was not in attendance as the Deputy Sheriff was unable to locate Respondent at the given address. The Respondent had not provided another address of service. The Court decided to proceed with the matter.

Appellant was employed by Respondent as an Instructor. Appellant approached the Labour Office alleging that his contract of employment had been unlawfully terminated. The matter was referred to compulsory arbitration and the Arbitrator ruled that the Appellant’s contract of employment was not unfairly terminated and he was not owed any terminal benefits. Appellant is dissatisfied with this ruling and has appealed to this Court.

Appellant’s grounds of appeal can be summarized as follows:

That the Arbitrator misdirected himself in accepting a document showing that the contract was mutually terminated.

That the document itself did not specify that the contract was being mutually terminated.

In his submissions, the Appellant stated that the Arbitrator did not take into account the evidence that it was his request to have arrear salaries paid which led to his dismissal. Appellant further submitted that the document which was produced before the Arbitrator did not show that the employment contract was mutually terminated.

Precedent has shown has that an appellate court can only interfere with the decision of a lower court or tribunal where there is evidence that there was a gross misdirection (see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)). A reading of the record shows that Appellant made his written claim before the Arbitrator. In its response, the Respondent stated thus:

“iv. 	The claimant (Appellant) approached the Respondent in May 2012 and requested for his wages arrears and a mutual settlement, was reached as the former was in search of green pastures.

v.	The Respondent and claimant agreed to terminate the contract of employment (See Annexure A) as provided for in S.I. 15/2006.”

This response was received by the Appellant on 25th September 2012. The Appellant filed a “Response” to Respondent’s submissions the following day. Appellant’s “Response” is couched as follows:

“Applicant will respond to the Respondent’s submissions as follows:

AD-PARAS (I) to (V) no issues

AD-PARAS (1) to (7) no issues.

All other documents annexed thereto also have no relevance to the matter before this 	arbitration.”

This clearly showed that the Appellant did not controvert the issue placed before the Arbitrator that the contract of employment had been mutually terminated. It was pertinent for the Appellant to clearly inform the Arbitrator that the document placed before him was not one mutually terminating the contract. This he did not do. Appellant merely states that the documents placed before the Arbitrator were irrelevant. This was not enough. Appellant did not put his side of the story before the Arbitrator. The Appellant now challenges the document on appeal but did not do so before the Arbitrator. Was the Arbitrator wrong in accepting the evidence placed before him by the Respondent? I think not. Asked by the Court as to why he did not controvert this evidence before the Arbitrator, the Appellant attributed this failure to confusion and shock. The Court does not accept this explanation having regard to the issues that Appellant was raising before the Arbitrator. A person in shock could not file a response on the following day after receipt of submissions from the Respondent. It is my view that there was no misdirection on the part of the Arbitrator. As stated by NDOU J. in Jona Ndalama v Chief Superintendent Happymore Sigauke and Commissioner General HB 153/11:

“There has to be something grossly irregular in the proceedings to warrant such interference.”

In conclusion I find that the appeal is devoid of merit and is accordingly dismissed with no order as to costs.