Mahusekwa High School Development Association v Naison Taona Gondo

### Preamble
IN THE LABOURN COURT OF ZIMBABWE
JUDGMENT
NO LC/H/344/16
HELD AT HARARE 11 NOVEMBER 2015
CASE NO
JUDGMENT NO LC/H/344/16
---------




IN THE LABOURN COURT OF ZIMBABWE			JUDGMENT NO LC/H/344/16

HELD AT HARARE 11 NOVEMBER 2015			CASE NO LC/H/438/15

& 27 MAY 2016

In the matter between:

MAHUSEKWA HIGH SCHOOL DEVELOPMENT		Appellant

ASSOCIATION

And

NAISON TAONA GONDO					Respondent

Before The Honourable L Kudya, Judge

For Appellant			Mr G Saidi (Legal practitioner)

Respondent			In person

KUDYA, J:

This is an appeal against the decision of the arbitrator where he found that the respondent employee had been unfairly dismissed by the appellant employer following allegations that respondent had absconded from duty after his suspension from work.

Facts of the matter are that the respondent who was in the appellant’s employment as a clerk at respondent’s high school in Mahusekwa Marondera had occasion to be suspended from work following the discovery of financial anomalies by the school and which the school wanted audit to verify.   After the suspension appellant worked for a school in Seke briefly.   A labour dispute ensued between the 2 parties with the respondent claiming unlawful dismissal.  Appellant on the other hand claimed that respondent had repudiated his contract by taking up a job with Seke when he was on suspension and by not going back to work after the finalisation of his criminal case.

This dispute which also included issues of salary arrears and overtime payments ended up at arbitration where the arbitrator ruled in respondent’s favour on the unlawful dismissal claim.  Arbitrator ruled that respondent had been unlawfully dismissed and had to be reinstated to his original position with full pay and benefits or that he be paid damages in place of the reinstatement.  Appellant was irked by the decision and thus appealed to the Labour Court which appeal is the subject matter of this judgment.

The appeal grounds were set out in the following terms:

Arbitrator erred by not finding that S.I. 15/06 does not prescribe how an employee should proceed where an employee wilfully opts out of employment for good in preference of another employer.

If there is such a procedure arbitrator erred by not placing weight on the evidence that the respondent wilfully opted out of employment in favour of another employer Seke High School from 8 November 2010.

Arbitrator erred by not finding that respondent was not dismissed at all.

In the result the appellant prayed that the arbitrator’s decision be set aside.

In response to the appeal the respondent maintained that:

Arbitrator did not err as alleged given the fact that his work stint at Seke was with

the appellant’s blessings and who had also promised to get back to him after the finalisation of the audit processed which they did not.  Respondent’s response is gleaned from a document which he filed with the court on 9 November 2015 styled respondent’s submission.  It is not clear why there was no formal response following the receipt of the notice of appeal.  Record is also silent on whether Registrar sent to respondent the standard form requesting his response on the matter.  Being that as it may what is apparent from the 9 November 2015 document is that respondent was opposing the appeal and maintained that due process was not followed when he lost his job with the appellant.

It is settled law that appeals from arbitrators are on points of law.  See Section 98 (10) Labour Act and case of Muzuva v United Bottlers 1994 (1) ZLR for the point of law fact debate.

The pertinent issue to be resolved in this case is whether facts presented on the matter satisfy the test needed for an appeal court to ask an arbitral award to be vacated.  Each of the grounds is addressed below:

Grounds 1 and 2

A reading of the heads of argument filed on appellant’s behalf do not seem to tally with the terms of reference which arbitrator says was given.  A reading of the arbitral award shows clearly that one of the issues that fell for determination was to determine respondent’s unfair dismissal.  Even a copy of the reference to arbitration captured on page 40 of the record speaks clearly to that.

To that end the court is at a loss as to where appellant’s counsel gets the idea that arbitration overstepped by determining respondent’s dismissal.  It is clear that submissions on that aspect are ill founded and cannot avail the appellant.  The Model code cited by the appellant on this ground states clearly that where one vacates his job by dismissal such should be in terms of the industry code or the Model code.  See also Section Labour Act [Chapter 28:01].

It is clear from these provisions that it is not enough for an employer to say that an employee absented self for long or got job elsewhere without going through the necessary disciplinary processes to give closure to the employment relationship between the parties. Whilst it is accepted that taking up another job connotes repudiation of one’s contract it is noteworthy that respondent submitted before arbitration that such was an interim measure with appellant’s blessing pending conclusion of the labour issue between them.  Arbitrator can therefore not be faulted for having concluded that due process was not followed on respondent’s loss of job.  The appeal court has therefore no basis at law to interfere with the award on that account.  The 2 grounds being without merit should fail.

Ground 3

This is a repetition of the above 2 grounds.  As stated earlier the arbitrator’s factual basis for concluding that respondent was dismissed cannot be faulted.  It would therefore be naïve for the appellate court to have expected him to have found otherwise in the face of all the facts of the matter.

In the final analysis it is clear that the arbitral award was sound in its reasoning and there is no justification for interfering with it.  The appeal should therefore fail in its entirety.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed.

Each party to bear own costs.

Sakala & Company, appellant’s legal practitioners