Musasa Project v Ednah Bhala

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/328/2014
HARARE, 5 MAY 2014 & 6 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/328/2014

HARARE, 5 MAY 2014 & 6 JUNE 2014	               CASE NO. LC/H/210/13

In the matter between:-

MUSASA PROJECT			-		Appellant

And

EDNAH BHALA				-		Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		-	Ms P. Chiwetu (Legal Practitioner)

For Respondent		-	Ms N.R. Sai (Legal Practitioner)

MURASI J:

Respondent was employed by Appellant as Executive Director.  It is common cause that Appellant reduced Respondent’s contracts to yearly contracts with effect from 2006.  Respondent was subsequently informed of the termination of her duties on 3 November 2009.  Respondent was replaced by another Executive Director who had started work prior to Respondent’s termination of contract.  The matter was brought before an arbitrator who found in Respondent’s favour.  However, both Appellant and Respondent are dissatisfied with the arbitrator’s decision albeit on different grounds.

Appellant’s main ground of appeal is that the arbitrator misdirected herself on a point of law in finding that the Respondent was unlawfully dismissed.  Appellant pleads in the alternative that the arbitrator erred at law in awarding six months as damages in circumstances where the Respondent’s contract was only for a month and where there was clear evidence that Respondent had found alternative employment almost immediately.

Respondent submits in the cross-appeal than the arbitrator erred at law by her failure to award reinstatement as the primary remedy.

The Court notes that the Appellant’s Heads of Argument show a slight variation from the filed grounds of appeal.  It was submitted for Appellant that Respondent was not unfairly dismissed but that she was on a fixed term contract which terminated due to effluxion of time.  Appellant further stated that the Labour Act does not outlaw a termination of contract on notice.  Appellant further stated that Respondent was not competent in discharging her duties and failed to co-ordinate funding activities.  Appellant submitted that Respondent was not entitled to the damages she was awarded as these were supposed to be paid up to the time she found alternative employment.  It was submitted that Respondent had immediately formed her own organization.

Respondent maintained that her dismissal was unfair and that she had a legitimate expectation of having her contract renewed.  Respondent further stated that the provisions of the law clearly militated against the termination of her employment.  Respondent added that Appellant did not dispute having employed someone else in her stead.  Respondent relied on the provisions of section 12(3) of the Labour Act (Chapter 28:01) which state that an employee is deemed to have been unfairly dismissed if on a contract of fixed duration he/she had a legitimate expectation of being re-engaged and another person was engaged instead of that employee.

It is trite that an appellate court will interfer with the decision of a lower tribunal if there is evidence of gross misdirection.  This was stated in INNSCOR vs CHIMOTO SC 6/12 where the Court had this to say;

“A principle has now been firmly established to the effect (that) an appellate court should not interfer with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

In determining the issue of whether there was unlawful dismissal the arbitrator made the following findings.  The arbitrator found that the Appellant had terminated Respondent’s contract.  It was found that Appellant had employed someone else in Respondent’s stead.  The arbitrator also found that the Appellant had made the admission that Respondent had been incompetent.  The following is extracted from the arbitrator’s findings;

“The fact that the employer engaged someone else soon after termination of claimant’s contract constitutes an unfair dismissal and the claimant had a legitimate expectation to have her contract of employment renewed.”

The finding by the arbitrator was that the provisions of section 12(3) of the Labour Act had clearly been satisfied.  Can it be said that in the circumstances the findings of the arbitrator as regards unlawful dismissal were unreasonable?  The Court firmly is of the view that there was no misdirection on the part of the arbitrator in this respect.  Further, Appellant has been unable to clearly demonstrate to the satisfaction of the Court that there was any misdirection.

The second issue to be determined is whether the arbitrator erred in arriving at the damages that she did.  The arbitrator’s award in this respect is couched as follows:

“Having said that I order that the Respondent pay claimant six months’ salary as damages for loss of employment.”

I must say that there is no indication by the arbitrator as to how this figure was arrived at.  There are conflicting statements from both Appellant and Respondent as to Respondent’s status when the award was made.  As stated in REDSTAR WHOLESALERS vs EDMORE MABIKA SC 52/05 a court is not entitled to pluck a figure out of a hat and believe that this would “meet the justice of the case.” Evidence should be led to show what period it would take for the person to find alternative employment.  As already stated, Respondent, disputes that she had already found employment as alleged by Appellant.  There is obviously a dispute of fact which required that both Appellant and Respondent lead evidence in this regard.  The Court finds that the arbitrator erred in arriving at the figure without hearing evidence.  However, the Court also finds that Respondent’s plea for reinstatement is a shot in the dark as someone is already in employment at the workplace making such reinstatement impossible.  The cross appeal therefore fails.

The Court therefore finds that Appellant’s appeal on the main ground fails.  Respondent’s cross-appeal for reinstatement also fails.  However the award of damages by the arbitrator must be set aside.

In the result the court makes the following order:

The Appellant’s appeal against the arbitrator’s ruling stating Respondent’s dismissal to be unlawful is dismissed.

Respondent’s cross-appeal for reinstatement is also dismissed.

The arbitrator’s award for damages is set aside.

The arbitrator is to hear evidence from both parties, within 30 days of this order, in respect of damages to be awarded and make a determination.

That there be no order as to costs.

GWAUNZA & MAPOTA, Appellant’s legal practitioners

MUNDIA & MUDHARA, Respondent’s legal practitioners