Metallon Gold Zimbabwe (Pvt) Ltd v Pathias Matambo

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/140/2016
HARARE, 8 FEBRUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/140/2016

HARARE, 8 FEBRUARY 2016    		         	CASE NO. LC/H/889/15

AND 18 MARCH 2016

In the matter between:-

METALLON GOLD ZIMBABWE (PVT) LTD				Appellant

And

PATHIAS MATAMBO							Respondent

Before Honourable P. Muzofa, Judge

For Appellant		F.A. Rudolph (Legal Practitioner)

For Respondent		F. Piki (Legal Practitioner)

MUZOFA, J:

The respondent raised two preliminary points for determination before the disposal of this appeal.

It was submitted that the appellant has dirty hands and therefore is improperly before the court and that the grounds of appeal do not raise questions of law as envisaged by section 98 (10) of the Labour Act [Chapter 28:01]”the Act”.

Dirty Hands

For the respondent it was submitted that the appellant did not appeal against the whole award of the arbitrator.  Appellant therefore conceded that it was bound to pay respondent a relocation allowance of $11 526,00.  This amount remained unpaid and therefore the appellant should not be heard until it purges its contempt, the court was referred to the case of ANZ (Pvt) Ltd v Minister of State for Information and Publicity and Others 2004 (1) ZLR 538 (S) at 548 – B – D.

For the appellant it was submitted that the form of the award was such that the respondent had a positive duty to take and enforce his right.  The respondent was supposed to take steps towards the enforcement of his rights.  The respondent therefore should not benefit from his inaction and cause the appellant to be barred.

In casu the appellant made some concessions though not so concrete that the payments would be made.

That as it may be the dirty hands principle is applicable in a case where the litigant has failed to comply with an order.  However in casu the order of the arbitrator is not an end in itself.  The respondent also had a duty to enforce his rights.  He failed to do so.  I am unable to deny appellant audience on that basis.

Both parties in this case had an equal duty.  Appellant has taken steps to protect its rights by way of appeal.  Respondent has done nothing but wants to deny appellant the right to be heard.

There is no merit in this preliminary point.

The Grounds of appeal

It was submitted that the grounds of appeal raise questions of fact.  The award by the arbitrator made factual findings in respect of the payments due to the respondent.  For the respondent it was submitted that the conclusions of fact reached by the arbitrator were grossly unreasonable, thus the grounds of appeal raise questions of law.

Both parties set out the principles of law relating to this aspect.  Section 98 (10) of the Act provides that only questions of law should be referred to this Court on appeal.  There is a plethora of cases setting out what constitutes a question of law for instance Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217.

A question of law has been defined to also include a gross misdirection on the facts.  The appellant should bring the question of fact into the appropriate ambit by alleging that there was a gross misdirection.

It is undisputed that the award by the arbitrator is a quantification of what was to be paid to the respondent.  Quantification is a question of fact.  The appellant must allege in the grounds of appeal that there was a gross misdirection of the facts and briefly set out the basis.

The court will consider the grounds of appeal with a view to establish whether the grounds of appeal were properly brought within the ambit of section 98 (10) of the Act.  This is a process that requires the court to also consider whether indeed there was a gross misdirection.

Salary arrears

“The arbitrator grossly erred by holding that respondent is entitled to arrear salaries when there was a lawful arrangement at works council for all employees at the time to be paid 50% salary.  Alternatively the arbitrator’s finding in this regard is 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.”

A reading of the ground of appeal shows that it was alleged that the finding on the 50% salary payment was grossly unreasonable.

The ground of appeal requires the court to determine whether a works Council agreement is binding on employees who join the company after it was made.  To my mind this is a question of law.

Even if it were a question of fact it would be properly before the court in that the factual issues as to who was the respondent’s employer after the transfer in view of the transfer letter falls for determination. This ground of appeal is properly before the court.

Travel allowances

The ground of appeal raise factual issues.  Firstly whether the respondent was entitled to the allowance and whether it was supposed to be paid subject to the company’s Group Chairman’s approval.

The arbitrator’s task was to interpret the documents placed before him.  In my view the determinant document was the Policy Ref 031-02-2009.  That document set out the value of the entitlements.  It stated that the money was payable in October subject to approval.  In the absence of an approval for the payments to be done the claim by the respondent could be erroneous.

I believe there was a gross misdirection on the facts therefore the ground of appeal is properly before the court.

Pension

This ground of appeal required an interpretation of the appellant’s policy on pension.  The appellant did not dispute that it was obliged to pay this contribution.  The bone of contention was that the money was not payable to respondent but to Old Mutual.

In the proceedings before the court, circumstances had changed.  The employment contract between the parties had been terminated.  A letter from Old Mutual was produced confirming payment of monies to the respondent.  The computations were obviously based on the actual contributions made towards respondent’s account.  Infact the letter dated 4 February 2016 at inception said “Following your retrenchment from the pension fund ...” which imply that no further contributions were expected.

As of the date of this matter surely it would be unreasonable to pay contributions on behalf of respondent in that account.

On that basis taking on the developments in this case that would mean there was no misdirection on the finding.  In any event the substantive part of this claim was not disputed.

DSTV Subscription

This was not a contractual benefit, it was the practice of the appellant to pay subscriptions on behalf of certain employees.  The question for the court to determine is whether a practice amounts to a right that can be claimed.

This is a question of law.  The ground of appeal is therefore properly before the court.

Pension Enhancement

The arbitrator considered the policy regulating the payment of this benefit, Policy Ref No. 031-01-2006.  The policy is clear it gives this benefit.  It was birthed during the Zimbabwe dollar era to cushion senior staff, however this benefit was meant to continue despite dollarisation as evidenced by paragraph 2 of the policy.

There was no gross misdirection in the finding by the arbitrator.

This ground of appeal is improperly before the court.

School Fees

The ground of appeal raises issue that there was no evidence to prove that the respondent was entitled to the $58 212.21 rather there was proof of US$29 669.14.

The documents referred to as proof of payment of the school fees are not very clear.  For instance the clean bill dated 24 July 2015 from Heritage School does not set out which period it covers and the amount paid.  For the sake of completeness I will allow this ground of appeal to ventilate whether the amount so awarded was proved.

On the basis of the foregoing, the preliminary point partially succeeds.  The following order is made.

The first preliminary point be and is hereby dismissed.

The second preliminary point partially succeeds the third and fifth grounds of appeal are struck off for being improperly before the court.

The Registrar is ordered set down the matter for hearing on the remaining grounds of appeal.

Scanlen & Holderness, appellant’s legal practitioners

IEG Musimbe and Partners, respondent’s legal practitioners