Nyamushaya, Kasusu And Rubaya v Betty Simango

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/741/2014
HARARE, 23 OCTOBER 2014
CASE NO.
JUDGMENT NO. LC/H/741/14
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/741/2014

HARARE, 23 OCTOBER 2014		     	      	     CASE NO. LC/H/556/13

AND 07 NOVEMBER 2014

In the matter between:-

NYAMUSHAYA, KASUSU AND RUBAYA			Appellant

LEGAL PRACTITIONERS

And

BETTY SIMANGO							Respondent

Before Honourable L.M. Murasi, Judge

For Appellant	Mr. A. Gurira (Legal Practitioner)

Respondent		In Person

MURASI, J:

Respondent was in the employ of Appellant, a firm of legal practitioners.  Following the termination of her contract, Respondent approached the Ministry of Labour Offices.  Attempts at conciliation failed and the matter was referred to arbitration.  The arbitrator found in favour of Respondent.  Appellant is not satisfied with this award and has appealed to this Court.

Appellant’s grounds of appeal are as follows:

The Honourable Arbitrator misdirected herself on a question of law by making the following findings of fact which are so outrageous in their defiance of logic that no reasonable person properly applying her mind to the issues could have arrived at the conclusions which conclusions cannot be supported by law or facts:

that the Respondent was employed as a permanent employee when in fact she was still a probationary employee on a three month probation contract.

that the Respondent’s contract of employment was unlawfully terminated when in fact it was lawfully terminated upon the expiration of the probation period of which Respondent was unsuccessful.

The Arbitrator fundamentally erred at law in coming to the conclusion that the Appellant had not implemented terminating procedures provided for in the Labour Act [Chapter 28:01] when in fact Appellant duly complied with the said Act in terminating the Respondent’s probationary contract.  The finding that the Respondent was unlawfully dismissed is unfounded at law and is not supported by any facts.

The Honourable Arbitrator erred at law by awarding the Respondent damages in lieu of reinstatement when no evidence was led to quantify such damages.  There was no legal basis for such a remedy in the circumstances.

At the commencement of the proceedings, Respondent informed the Court that her legal practitioner had informed her that he was committed elsewhere and could not attend.  Respondent further stated she was comfortable in representing herself.

Appellant’s Counsel submitted that the Arbitrator erred in making findings that were not supported by the evidence.  It was stated that there was no basis for not taking into consideration the affidavits deposed to by the partners in the law firm.  It was further submitted that the fact that the contract of employment produced by the Appellant had not been signed by Respondent, was not a reason for discrediting it.  It was argued that the Labour Act did not stipulate that such agreements should be signed by both parties to the agreement.  Appellant’s Counsel further stated that the damages that were arrived at by the Arbitrator were improper as no evidence was adduced by either party.

Respondent stated that she abided by the Heads of Argument filed on her behalf by her legal practitioner.  Respondent further submitted that the document that she produced at the hearing before the Arbitrator had erroneously been carried amongst her property when she left.  However, she argued, it went on to show that she was in the employ of the Appellant at the material time.

Precedent has shown that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection.  In BURROWS AND ANOTHER v CHIMPHONDO 1999 (1) ZLR 58 (S) GUBBAY CJ (as he then was) had this to say at 62F-63A:

“It is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extremes or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing.  In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

A reading of the Arbitrator’s award shows that she dismissed the affidavits tendered by Appellant in evidence.  She stated that:

“However the three are senior partners of the law firm that is a party to the dispute before this Arbitrator and clearly have an interest in this matter.  The evidence of the three affidavits therefore cannot be relied on without any other corroborative evidence.”

The Arbitrator did not believe the affidavits produced by the Appellant could be relied upon in evidence.  She made a finding after having heard evidence.  This Court inquired of Appellant’s Counsel why the affidavits were identical word for word.  The Court also pointed out that Mr. Kasuso’s affidavit referred to:

“an offer of employment as the Personal Assistant to Mr. T.G. Kasuso and his Assistant Mr. S. Makuni.”

The Court brought it to the attention of Appellant’s Counsel that these affidavits were from senior lawyers. At least Mr Kasuso’s affidavit should have been different from others by stating that the interviewee was going to be his personal assistant.  Appellant’s Counsel stated that he could not make any submissions on the making of those affidavits.

The arbitrator also stated that Respondent’s witness evidence could not be accepted.  She reasoned thus:

“However, the witness in question had nothing to prove that she was on attachment at the Respondent’s law firm during the period in question.”

This shows that the Arbitrator considered the evidence given by this witness and made the decision that it was uncorroborated.  Can she be faulted for making these findings?  Would a reasonable person not have come to the same conclusion?  I am of the view that there was no misdirection on that score.

The next bit of evidence involved the document produced y the Appellant showing that Respondent was employed on probation.  Respondent disowned this document stating that she had never seen it.  The document in question had not been signed by the Respondent.  The Arbitrator stated:

“Furthermore the letter in question was not acknowledged by the Claimant hence there is no proof that it was received by the Claimant.”

This was a finding of fact by the Arbitrator.  As stated above, an appellate court can only interfer where there is evidence of misdirection.  Appellant’s Counsel sought to argue that the Labour Act did not make it a requirement that the document be signed.  The issue was whether Respondent was employed on probation.  The Arbitrator’s duty was to determine whether that letter produced by Appellant was enough proof that this was the position.  The Arbitrator’s finding was that she had not been convinced that this was so.  I find no reason to interfer with that discretion.

The evidence of the document produced by Respondent produced a spirited attempt by Appellant to have it discredited.  The Arbitrator captured Appellant’s resistance as follows:

“In addition, the Respondent argued that the document itself is not authentic and that it is fraudulent.”

During proceedings, Appellant’s Counsel submitted that the document was unknown at Appellant’s law firm and no person by that name was ever represented by Appellant.  The Court asked Appellant’s Counsel:

“Can you confirm Appellant did not represent any one of the parties?”

Appellant’s Counsel’s response was:

“I confirm that Appellant did not represent any of the parties in that case.”

The court wanted to get to the bottom of this disputed document.  As stated in REX vs HEPWORTH 1928 AD 265 the court’s position is not that of an umpire to see that the rules of the game are observed by both sides.  A judge is an administrator of justice and should not provide some practitioners with a forum to score academic points in attempts to prevent a court from adjudicating upon the real issues.  The Court requested the Registrar at the High Court Civil Court to provide details of the parties in case number HC 10846/11.  The information clearly showed that Appellants filed a Notice of Appearance to defend on 29 December 2011.  This clearly showed that Mr. Gurira, on behalf of Appellant, made a deliberate misrepresentation of the facts.

The matter would have been different if Appellant’s Counsel had stated that he was not aware or certain of the facts.  Such behaviour is clearly reprehensible.  The Court finds that the document was properly before the Court despite the Appellant’s spirited attempts to discredit it.  Appellant was all along aware that the law firm had represented one of the parties but sought to mislead both the Arbitrator and this Court.  I find the Arbitrator’s finding unassailable on that score.

The last ground of appeal pertains to the damages that were awarded in lieu of reinstatement by the Arbitrator.  Appellant has submitted that the Arbitrator merely “plucked a figure” without the adduction of evidence.  The Arbitrator’s award shows that she lists the claims made by the Respondent on page 3 of the award (page 12) of the record.  This shows that some submissions were made by Respondent on this issue.  In making the award, the Arbitrator compares the present matter to that of KUDA MADYARA vs GLOBE AND PHOENIX INDUSTRIES S 663/2007.  To some extent this shows that the Arbitrator exercised her mind as to the reasonableness of the claim before her.  The fact that Appellant did not make any submissions in this respect does not necessarily mean that no evidence was adduced.  The award clearly shows how the figures were arrived at.  It does not appear to me that these were “plucked” from nowhere.  They are clearly listed under different heads.  This ground of appeal must also fail.

In conclusion, the court finds that the appeal is devoid of merit and is accordingly dismissed.  The Court makes the following g order:

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of E. Maganyani dated 31 January 2013 is hereby upheld.

That there be no order as to costs.

RUBAYA & CHATAMBUDZA, Appellant’s legal practitioners