Mashonaland Tobacco Company (Pvt) Ltd v Michael Nyatanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/…./25
HARARE, 24 OCTOBER 2024
CASE NO. LC/H/883/24
MASHONALAND TOBACCO COMPANY (PVT) LTD
APPELLANT
LC/H/2025
LC/H/883/24
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IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/…./25

HARARE, 24 OCTOBER 2024                         		CASE NO. LC/H/883/24

MASHONALAND TOBACCO COMPANY (PVT) LTD		APPELLANT

Versus

MICHAEL NYATANGA							 RESPONDENT

Before the Honourable Kudya J;

For the Appellant           	- Mr F. Mahere, Legal Practitioner

For the Respondent        	- R. Mupita, Legal Practitioner

KUDYA J:

This is an appeal at the instance of the employer and a cross appeal at the instance of the employee. These appeals arise out of the following background:

The employee was in the employer’s employment as an Area Controller for Karoi 2 Area. He was accused of acting contrary to the conditions of his employment and performing his duties in an incompetent or inefficient manner.

The charges arose in the context of complaints from the growers who he was interacting with during the course of his duties. He was brought before a disciplinary authority which found him guilty of the infraction and dismissed him from employment. He challenged his job loss until when he got before the arbitrator who ruled that his job loss was marred with substantive and procedural anomalies which vitiated all the proceedings.

The arbitrator set aside the guilty verdict and dismissal penalty and ordered that the employee be reinstated to his job without loss of salary and benefits or that he be paid damages if reinstatement was no longer feasible. The employer was unhappy with the arbitral decision giving the employee his job back. It therefore appealed to the Labor Court in the appeal which is the subject of this judgment. The employee challenged the appealed and also cross appealed against the arbitral award.

The appeal is cited as follows:-

“Having found that the respondent’s misconduct went to the root of the parties’ employment contract, the arbitrator misdirected herself at law by making a contradictory award to the effect that the respondent be reinstated.”

In the result, the employer prayed that the appeal succeeds with costs, that the arbitral decision be set aside and be substituted by an order dismissing the employee’s claim of unlawful dismissal.

In response to the appeal, the employee maintained that; there was no contradiction in the arbitral award. Arbitrator found that the disciplinary process was procedurally and substantively unfair. She concluded that the failures to adhere to the Code were substantive hence her order and the record confirms the flaws complained about. In the result the employee prayed that the appeal be dismissed with costs.

The employee cross appealed in the following terms:-

“The independent arbitrator grossly misdirected herself on the facts in making a finding that evidence led against respondent proved the offence of conduct inconsistent with the fulfilment of his contractual duties as defined in Section 4(a) of the Code.”

In the result the employee prayed that the cross appeal be upheld with costs.

In response to the cross appeal, the employer raised a litany of points in limine and prayed that the cross appeal be struck off with costs. On the merits plane it argued that the cross appeal was not merited so should be dismissed.

On the hearing date, a further argument about the cross appeal was raised by the employer where it sought that the cross appeal be deemed dismissed for failure to file heads of argument. It is settled that the appeal court will not lightly interfere with the decision of a trier of fact, unless it can be demonstrated that the exercise of its discretion was grossly unreasonable. See Hama v NRZ 1996(1) ZLR 664. See also Nyahondo v Hokonya and others 1997(2) ZLR457

In the case at hand, the employer has plucked out of an entire award the paragraph it cited in its appeal and sought to have the award set aside on that basis alone. Sight should not be lost of the fact that, the arbitrator states clearly that the basis of her reinstatement order were the clear breaches of the substantive law and procedural constructs which were not addressed to her satisfaction and resulted in the employers, decision to relieve the employee of his job.

It is granted that, the utterance complained about indeed speaks to blowing hot and cold by the arbitrator but, as stated above that was not the premise of her decision. She cited at length breaches of procedural fairness in the matter starting with short notice which was given the employee to attend the hearing, denial of the right to call witnesses and denial of genuine requests for postponements of the matter.

On the substantive plane arbitrator made observations about rehearsed testimonies from the employer’s witnesses etc. In a nutshell, the cumulative effect of the shortcoming in the disciplinary proceedings is what gave birth to her order. That can under no circumstances be concluded to be calling for a vacation of the award on the reading of a simple statement which is said to be contradictory in its net effect. The appeal is clearly without merit so it should fail.

In respect of the cross appeal it is clear that such is a reactive appeal if regard is had to the fact that, the reinstatement order was made for the employee so what exactly does he want to appeal. The fate of his cross appeal is the same as that of the main appeal. He like the employer, only went to the record and plucked out a single statement and says he does not agree with it. He does not even say what should happen if the court is in agreement with him on the cross appeal. The court is satisfied that the cross appeal is therefore doomed both from the perspective of being bad at law and being an academic exercise as the employer correctly puts it. It should therefore fail.

In the ultimate both the appeal and cross appeal being without merit they both be and are hereby dismissed. Each party bears to own costs

IT IS ORDERED THAT

Both appeal and cross appeal being without merit they be and are hereby dismissed.

Each party bears own costs

Gill, Godlonton and Gerrans- Appellant’s Legal Practitioners

Manyangadze Law Practice- Respondent’s Legal Practitioners