Lofombo Bus Company v E Mukombwa & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/267/16
HELD AT HARARE 26 OCTOBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/267/16

HELD AT HARARE 26 OCTOBER 2015				CASE NO LC/H/430/13

& 13 MAY 2016

In the matter between:

LOFOMBO BUS COMPANY					Appellant

And

E MUKOMBWA & ANOTHER					Respondent

Before The Honourable L Kudya, Judge

For Appellant			G H Muzondo (Legal Practitioner)

For Respondents		J Koto (Legal Practitioner)

KUDYA, J:

This matter makes very sad listening as it has dragged to and from unnecessarily with at one point in time the court being invited to preside over an application for leave to appeal to the Supreme Court.  It is a matter where the court will refer to the parties as employee and employer for ease of reference and to avoid confusing the record since either party has at one time or other held inter chargeable applicant/appellant/respondent positions:

In summary form it is a matter where employees approached arbitrator to determine 2 issues that is unlawful dismissal and non-payment of wages.  The employees partially succeeded on that arbitration in that arbitration ruled that they be paid their leave days.  They however lost the claims of unlawful dismissal and non-payment of wages.  This drove them to appeal to the labour court against the arbitral award.  As they did so the employer also counter appealed.  Its main contention was that arbitrator had exceeded his mandate by entertaining and making an award for leave days which item was not in his terms of reference.

It therefore argued that the decision on the employees; leave days claims be set aside and it be ruled to be bad at law.  At that stage the matters were be-set with application and counter application as defaults on filing heads of argument timeously refer.  Ultimately the parties agreed that the default order which had been handed down by the Labour Court be set aside by consent, that employer be allowed to file heads out of time and that bar operating against be uplifted.  When that was done parties agreed that the court determines the merits of the main appeals that is the appeals by both parties against the arbitral award.  It is primarily the merits of the appeals which are addressed in this judgment.

As stated earlier on the matter was be-set by argument and counter argument vis processes and procedure so the court would not want to be deterred by going back to that technicality exercise.  This deserves statement since upon making their submissions employees sought again to draw court’s attention to whether there were proper appeal grounds before it on access of the point of law fact debate.  See Sable Chemicals v Easterbrook SC 18-10

That said the court did not deem it necessary to find for either party vis the point of law debate.  Suffice to say that the court concluded that if either the appeal or counter appeal did not meet the laid down criteria of what should be pleaded the court was prepared to condone all that so that matter could be concluded on the merits one and for all at the labour court.  This judgment therefore only addresses the merits of the appeal and counter appeal.  Each of these are dealt with below:

Appeal

The employees main contention was that arbitrator erred to conclude that they had not been unlawfully dismissed.  They also argued that arbitration had denied them an order for wages due to them since they verily believed that they were entitled to such.

On the other hand employer maintained that arbitrator was right to find that there was no unlawful dismissal since the employees repudiated their contracts after they had been asked to account for proceeds from the buses they were driving.  Arbitration observed that there was nowhere from the papers filed of record and evidence led before him where it was pointed out that employer did dismiss the employees as such.  The law is clear that where arbitrators factual finding are not grossly unreasonable and outrageous the appellate court has no basis to interfere.  See Nyahondo v Hokonya & Others 1997 (2) ZLR 475 (SC).

As arbitrator rightly found the employees did not came back after they had been asked to account for the money which they had collected from the buses which they were using.  That can be styled unlawful dismissal.  Had employees come back to work explaining about the money which they had been asked to account for there surely would not have been any argument that they were dismissed.  The law is also clear that the fact that an appellate court would have interpreted facts of a matter differently is no licence to upset the trier of fact which presented at the tribunal below it.  The court is satisfied that there is nothing in the arbitral award that justifies its vacation on account of this ground.  The ground therefore lacking in merit should fail.

Wages

The payment of wages is a natural consequence of an employment relationship where the arbitrator ruled that the employees had not been unlawfully dismissed it followed therefore that no claim of wages that could flow from that order.  The court has no reason to fault the award on that account of the reasoning on the wages component since it is in sync with the decision on the unlawful dismissal.  This ground should therefore fail.

Leave days

This is the aspect which brought the employer to court on appeal.  Its argument was that arbitrator did not have to decide the issue of leave days as issues before him were the dismissal and the wages.  It does not require delving into any deep thought process to glean that where one has left a job either on own accord or by being told by employer to go the issues of leave days is a natural by product of the exercise on deciding the job loss.  The court is therefore not persuaded that the arbitrator exceeded his mandate by dealing with the leave days aspect. The argument being without merit should therefore fail.

In the ultimate the appeal based on unlawful dismissal and wages being without merit should fail.  Equally the appeal on account of leave days argument being without merit also should fail.

IT IS ORDERED THAT

Appeal at employees’ instances vis unlawful dismissal and wages being without merit it be and is hereby dismissed.  Appeal at employer’s instance vis leave days being without merit it be and is hereby dismissed.

Each party bears own costs.

G H Muzondo & Partners, appellants’ legal practitioners

Koto & Company, respondent’s legal practitioners