Linda Musenwa and 5 Others v TN Harlequin Luxaire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/783/2014
HARARE, 13 & 21 NOVEMBER 2014
Case N0.LC/H/685/14
In the matter between
---------




IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/783/2014

HARARE, 13 & 21 NOVEMBER 2014              Case N0.LC/H/685/14

In the matter between

LINDA MUSEMWA AND 5 OTHERS			Appellant

And

TN HARLEQUIN LUXAIRE				Respondent

Before The Honourable B.T Chivizhe, Judge

For Appellant:  Mr M. Muzengeza (Employee Representative)

For Respondent: Mr D. Musengi(Legal Practitioner)

Chivizhe, J:

This is an appeal against an arbitral award handed down on the 18th of July 2014.

On the date of hearing the Respondent counsel took two points in limine, firstly that the grounds of appeal are vague, embarrassing, incomprehensible and not meaningful. Secondly, the Respondent contended that the grounds of appeal being based on factual findings made by the Arbitrator were not competent grounds by the virtue of Section 98(10) of the Labour Act. Both points in limine were vigorously opposed by the Appellant Representative.

Section 98(10) of the Labour Act [Cap 28:01] provides as follows;

“(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

Clearly therefore before this court is seized with an appeal under Section 98(10) of the Act the court ought to address the aspect as to whether or not the appeal raises ‘questions of law’.

The term ‘question of Law’ itself has been discussed in a plethora of decisions from the Supreme Court. The leading decision however is Muzuva vs United Bottlers (Private) Limited 1994 (1) ZLR 217 (5) where the term ‘question of law’ was defined in three classification. The term was defined to mean either

A question which the law itself has automatically answered to the exclusion of the right of court to answer as it thinks fit in accordance with what is considered to be the truth and justice of the matter.

A question as to what the law is - the question for argument and determination is what is the true rule of law on a certain matter.

A question which is within the province of the judge instead of the jury.

Further down the line the Supreme Court expanded the meaning of ‘question of law’ in National Foods Limited Vs Stewart Mugadze SC 105/95. The court laid down the principle that a serious misdirection on the facts can amount to misdirection in law.

Finally in Reserve Bank of Zimbabwe Vs (i) Corrine Granger (ii) Martha Mataruka SC 34/2001 the Supreme Court defined the term to include a ‘misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. In the same case a misdirection of facts was said to be either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented. I have deliberately gone to some length to define the term solely for the benefit of the Appellants who are self-actors and who may not be privy to the provisions of the law.

Applying any of the principles as outlined by the Supreme Court I am satisfied that the present appeal does not raise questions of law. A perusal of the purported grounds of appeal will show this clearly.

The appeal was noted on the basis of the following grounds;

The Arbitrator erred that the claimants were aware that the matter was being handled elsewhere.

The Arbitrator erred that the claimants had sued the employer.

The Arbitrator erred at law by dismissing the claim of unfair dismissal.

The Arbitrator erred at law by not awarding claimants their outstanding salaries.

It is clear that the grounds of appeal are premised on factual findings made by the Arbitrator, for example, ground number one. The issue as to whether the matter was being handled elsewhere or not is purely a factual issue. In ground number two the Arbitrator having in his award noted that the Appellants were suing the Respondent the Appellants challenge that finding. The finding that the Appellant had sued or were suing Respondent is purely a factual issue that one cannot appeal against in the Labour Court. The next ground although underpinned by reference to ‘erred in law’ also does not raise a question of law. The Appellant should have proceeded to indicate clearly how the Arbitrator misdirected himself in law in reaching the conclusion that the Appellants were fairly dismissed. The last ground once again despite reference to ‘erred at law’ does not raise a point of law.

The Appellants Representative opposed vigorously both point in limine. The bottom line however is whether the appeal placed before the Labour Court is a premised on a question of law or not. This is important because in terms of Section 98(10) of the Labour Act [Cap 28:01] appeals to the Labour Court from Arbitral awards have to be on points of law. The court was also aptly referred to the decision in L. Jeche and Ors vs ZUPCO LC/H/739/13 where this court came to a similar conclusion. I am satisfied that the present appeal, not being on points of law as required under Section 98 (10), clearly stands to be dismissed as I hereby do.

MUSENGI & SIGAUKE, Respondent’s legal practitioners