Rainbow Tourism Group v Ester Knife

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/679/14
HELD AT HARARE 12TH SEPTEMBER 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT  LC/H/679/14

HELD AT HARARE 12TH SEPTEMBER 2014		CASE NO LC/H/360/14

& 10TH OCTOBER 2014

In the matter between:-

RAINBOW TOURISM GROUP			Appellant

And

ESTER KNIFE					Respondent

Before The Honourable P Muzofa, Judge

For Appellant		W Chirongoma (Legal Practitioner)

For Respondent		A Marara (Legal Practitioner)

MUZOFA, J:

This is an appeal against an arbitral award issued on 19 February 2014.

After the appellant addressed the court on the merits, the respondent in response raised issues that technically were preliminary issues.  The appellant requested for a postponement to prepare a response.  The court granted this postponement for expediency although respondent had raised the issues in the notice of response.  It was therefore expected that the appellant was ready with a response.  The court directed parties to proceed to make submissions on the preliminary issues and a determination be made before respondent’s response on the merits was made.

I propose to consider the grounds of appeal as they appear on the notice of appeal.

Ground of Appeal 1

That the arbitrator erred at law by ruling that the respondent was constructively dismissed.

It was submitted for the respondent that this ground of appeal was too generalised it is not clear what the appellant seeks to have the court address.  Respondent’s submission clearly was misplaced.  It is clear from the ground of appeal that appellant brings to the fore the question of constructive dismissal.  The court is being asked to determine whether or not the facts that were placed before the arbitrator would justify the finding of constructive dismissal.  The ground of appeal is not too generalised as alleged by the respondent.  It was submitted for the respondent also that the first ground of appeal does not raise any questions of law as contemplated by section 98 (10) of the Labour Act [Chapter 28:01].  It is trite that a question of fact can amount to a question of law where the decision is grossly unreasonable see Reserve Bank Zimbabwe v Corrine GrangeR & Anor 2001 (1) ZLR SC.

It is trite that constructive dismissal is a question of fact.  This is evident even  from appellant’s response that the court  under this ground of appeal is being asked to determine whether the facts before the arbitrator amounted to constructive dismissal.  Clearly the arbitrator considered the facts and circumstances leading to the respondent tendering her resignation.  The arbitrator thereafter made a factual finding.  Having made a finding that the issue raised is a question of fact the next hurdle that appellant had to surmount  was to bring the question of fact within the ambit of section 98 (10) of the Act.  This can only be done by alleging and showing that there was a serious misdirection on the facts amounting to a misdirection at law.  This was neither alleged nor shown by the appellant, in my opinion, no question of law arises from this ground of appeal.

Ground of appeal 2

The second ground of appeal questions the appropriateness of the order of damages in lieu of reinstatement made by the arbitrator.

For the respondent it was submitted that the ground of appeal was not supported in the appellant’s heads of argument therefore it should be treated as abandoned.  In response the appellant submitted there was no intention to further amplify the ground of appeal since it was clear.

The  requirement to file heads of argument and the contents thereof is regulated by Rule 19 of this court’s rules.  Rule 19 provides

“1.	Where an applicant or appellant is to be represented by a legal practitioner shall at a hearing ... the legal practitioner shall -

...  lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any which he or she intends to cite.”

The rules require the heads of argument to flesh the grounds of appeal.

In this instance the appellant’s conduct fell below what the rules require.  It is not within the court’s purview to delve into the ground of appeal without the appellant elucidating the basis of the argument.  I agree with respondent by such conduct the appellant has abandoned the ground of appeal.

Ground of appeal 3

It was submitted for the respondent that this ground of appeal did not make any meaningful reading.  It was only after respondent raised this issue that appellant then made a concession that indeed the ground of appeal did not make sense.  Surprisingly the issue was raised in the notice of response the appellant neither applied for an amendment nor was the issue addressed in its heads of argument.  Before this court it was conceded for the appellant that the ground of appeal had some information missing.  It was at this stage that an application was made to amend the ground of appeal.  Clearly this was unprocedural. Allowing the amendment would clearly prejudice the respondent for heads of argument had been filed.  The ground of appeal does not bring  out any meaningful issue as it stands.  Appellant urged this court to invoke its powers in Rule 26 of this Court’s rules and allow the amendment.  I do not believe the rule was meant for cases like the one before the court.  The grounds of appeal are the back borne of the appeal.  Where the ground of appeal does not make meaningful reading there is no appeal.  The heads of argument cannot cure such a defect.  Having made a finding that the ground of appeal does not make any meaningful reading, it means there is no ground of appeal.

Ground of appeal 4

The ground of appeal raises the issue – whether the respondent’s transfer was lawful.  This in my view is closely linked to the issue on constructive dismissal.  These are some of the facts that the arbitrator considered and eventually made a factual finding that there was constructive dismissal.  This is the very conduct that led to the respondent resigning.  I believe the observations made on the first ground of appeal apply.  The ground of appeal therefore raises no question of law.

Ground of appeal 5

This ground of appeal also raises the issue upon which the arbitrator made his finding of constructive dismissal.  The finding of the legality or otherwise of the transfer and whether respondent should have been given an indulgence is the basis of the ground of appeal.  In my view although this is a question of fact the appellant having raised yet the issue of constructive dismissal has alleged a gross misdirection and demonstrating how it believes the gross misdirection came about.  I believe this ground of appeal is properly before this court.

The respondent requested the court to dismiss the appeal on the preliminary points and grant costs on a higher scale.  Both parties have partially succeeded and therefore an order of costs in the cause would meet the justice of this case.

The net effect of the foregoing is that grounds of appeal one (1) to (4) four being improperly before the court are struck off.  The only ground of appeal  number five raised the issue of constructive dismissal and it being brought within the ambit of a question of law is properly before the court.

Accordingly the following order is made

The grounds of appeal one to four being improperly before the court be and are hereby struck off.

The Registrar to set down the matter to be heard on the merits.

Cost be costs in the cause.

C Kuhuni attorneys, appellant’s legal practitioners

Mutamangira & Associates, respondent’s legal practitioners