Magamba Echimurenga Housing Co-op v Zanele Somkence

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/723/16
HELD AT HARARE 7 MARCH 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/723/16

HELD AT HARARE 7 MARCH 2016			CASE NO LC/H/504/15

& 18 NOVEMBER 2016

In the matter between:

MAGAMBA ECHIMURENGA HOUSING CO-OP		Appellant

And

ZANELE SOMKENCE						Respondent

Before The Honourable Muchawa, J

For Appellant		I Mataka (Legal Practitioner)

For Respondent		K Masasire (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award.

The arbitrator had to determine the following,

Whether or not there was an employment relationship between the parties;

Whether or not there was non-payment of salaries, and if so, the quantum thereof;

Whether or not the complainant was unfairly dismissed; and

The appropriate remedy

The arbitrator found that there was an employment relationship between the

parties, that the respondent was owed $16 720 as arrear salaries and $4 500 as notice pay.  The parties were directed to negotiate and agree on a termination package over and above the arrear salaries and notice pay.

Disgruntled, the appellant has lodged this appeal with the following grounds;

The arbitrator grossly erred and seriously misdirected herself on a point of fact which culminates into an error on a point of law when she failed to appreciate the points of fact placed before her that the respondent was never appointed as a Regional Secretary of the appellant.  The respondent expressly admitted during hearing that she never went to Bulawayo where such post was to be held.  Also, the purported letter of appointment was never given to the respondent.

The arbitrator grossly erred at law in proceeding to quantify the respondent’s salaries without any legal or factual basis hence no evidence at all.  The figure awarded is clearly unjust enrichment.  There was no evidence led and proper quantification.

The arbitrator grossly misdirected herself in facts as to culminate into an error at law when she made a finding that the claimant was earning a basis salary of $1500 whereas evidence submitted before her by the claimant, now respondent, failed to provide a payslip or other evidence to prove that she had once received such a salary from the appellant.

At the hearing of this appeal I postponed the hearing of the matter on the merits

sine dine to enable the arbitrator to submit the full record of proceedings, in particular, the handwritten notes of the oral hearing which are missing from the record.  I however proceeded to hear submissions on the point in limine raised by the respondent and reserved judgment.  This is it.

The point to be considered is whether or not the grounds of appeal before me properly raise questions of law.

The respondent contends that it is trite that an appeal to this court against an arbitral award shall be based on a question of law.  The grounds raised by appellant are alleged to be purely points of fact and unappeallable.

It is argued that the addition of the words “erred on a point of law” or “culminates into an error at law”” is said to be only a way to get around the requirements of the Labour Act [Chapter 28:01] in section 98 (10) (See Sable Chemicals Industries Ltd v Easterbrook SC 18/10.

I was urged to look at the real issues being raised in each ground of appeal.

The need to allege that there was gross unreasonabless on a finding of fact was argued to be necessary for such a finding to then become a question of law.  See Chinyange v Jaggers Wholesalers SC 24/04.  In casu, it was argued that such allegations are missing so the grounds of appeal do not constitute questions of law.

The prayer was for the appeal to be struck off the roll.

On the contrary, the appellant argued that the appeal is properly before the court.  It was contended that a gross misdirection on a question of fact can amount to a misdirection on a question of law.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

It was also argued that there need not always be an allegation that the finding of fact was so unreasaonable as to be one no reasonable person would have arrived at.  The important thing is to be guided by the substance of the grounds of appeal and not the form.

I now turn to consider each ground of appeal.

Ground 1

In the first ground of appeal, it is alleged that the arbitral tribunal reached a conclusion which was contrary to the evidence led.  Such evidence is said to be that the respondent was never appointed as regional secretary and never went to Bulawayo where such post was to be held and also that she was never given the purported appointment letter.

The respondent avers that the issue being raised is whether the respondent was appointed regional secretary or not.

Even though the appellant has tried to make it seem as if the substance of the ground of appeal is that the arbitrator failed to appreciate the evidence actually presented, this does not seem to be supported by the award.  In disposing of the issue of whether there was an employment relationship, the arbitrator makes it clear that from an assessment of the evidence adduced, she placed weight on the following evidence;

The appointment letter dated 8 December 2012 (record page 54)

“Ref – Appointment as Secretary Magamba Echimurenga Housing Trust – Southern Region

The chairman and founder of Magamba Echimurenga Housing Trust has pleasure to inform you that you have been appointed for the above post with effect from the above date.  You will be advised of other benefits in due course.

We wish you the best and success for your new post”;

The memorandum from the chief executive officer dated March 10 2013, and

The correspondence dated 29 April 2014.

It is clear therefore that the arbitrator in assessing the evidence before her by

balancing the probabilities concluded that the evidence presented in support of the existence of an employment relationship was more plausible  than that by the appellant.  (See Ebrahim v Pittman N O 1995 (10 ZLR 176 (H).

That, in my opinion, does not qualify as a failure to appreciate the evidence actually presented nor can it be said to be a conclusion contrary to the evidence presented as spelt out in Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34-01 and Jairos Zvokusekwa v Bikita Rural District Council SC 44/2015.

The point in limine is upheld in respect to ground 1 of appeal.

Ground 2

The respondent avers that the second ground of appeal is raising a procedural issue and is also a point of fact.  It is argued that the real issue being raised is whether or not evidence was led during the hearing.

The appellant insists that ground 2 of appeal questions whether a settled principle of law in quantification proceedings was observed, that is, both parties should submit evidence supporting their quantification.  It is argued that, in casu, no such evidence was heard and that this is a misdirection at law.

Mr Masasire for the respondent sought to argue that there is no need for evidence, in a matter of this nature, unlike in a damages matter as this was just about salary.

The second term of reference before the arbitrator was to determine whether or not there was non-payment of salaries, and if so, the quantum thereof.

The case of First Mutual Life Ltd v Jackson Muzivi SC 9/07 makes it clear that to quantify is to determine the quantity of measure or express as a quantity.  What is required is the specific monetary award and in the First Mutual Life Ltd supra case even back pay had to be quantified even though it related to a salary.

Though the principles relating to quantification have been stated in the light of damages, the principle that to quantify without leading any evidence is to err in law is trite.

Accordingly I find that ground of appeal 2 fits into one of the three district meanings of what a question of law is.  In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217, it was held that a question of law means, inter alia;

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

The point in limine is dismissed regarding ground of appeal 2.

Ground 3

Ground of appeal 3 is alleged by the respondent to be raising the factual question as to whether the respondent earned a salary of $1500 per month.

The appellant argues that the finding that the respondent was earning a salary of $1500 per month was grossly unreasonable so as to amount to a question of law as there was no evidence availed in respect to the allegation made.

In the case of Jairos Zvokuseka v Bikita Rural District Council SC 44/2015 GARWE JA held that it would constitute a question of law if a ground of appeal alleges that a finding made was not supported by the evidence led or was contrary to the evidence led.

In casu that is the allegation made I find therefore that ground of appeal 3 in its substance is raising a question of law.  The point in limine is dismissed in respect to ground 3.

Accordingly, ground 1 of appeal is struck off for being improperly before me whilst the appeal shall proceed to be heard on the merits in respect to grounds 2 and 3.

Chambati, Mataka & Makonese, appellant’s legal practitioners

C Masasire Law Chambers, respondent’s legal practitioners