Rawson Properties v Precious Musarurwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/728/14
HELD AT HARARE 9TH JULY 2014
CASE NO LC/H/199/14
AND 24TH OCTOBER 2014
JUDGMENT NO LC/H/728/14
---------




IN THE LABOUR COURT OF ZIMBABWE 	    JUDGMENT NO LC/H/728/14

HELD AT HARARE 9TH JULY 2014 	 	    CASE NO LC/H/199/14

AND 24TH OCTOBER 2014

In the matter between:-

RAWSON PROPERTIES						APPELLANT

And

PRECIOUS MUSARURWA					RESPONDENT

Before The Honourable G Mhuri, Judge

For Appellant		Mr T.S. Manjengwa (Legal Practitioner)

For Respondent		Mr A.C. Mandevere (Legal Practitioner)

with Mr J Mandevere (Legal Practitioner)

MHURI, J:

This is an appeal against an arbitral award.

Appeals against arbitral awards to this Court must be premised on a point of law.  Section 98 (10) of the Labour Act [CAP 28:01] provides:-

“An appeal on a question of law shall lie to Labour Court from any decision of an arbitrator appointed in terms of this section.”

This section ousts appeals against factual findings from the jurisdiction of this Court.  There is however an exception to this position.  Factual findings are appealable only if there is a gross misdirection on the facts as to amount to a misdirection on the law.  This is trite.

NATIONAL FOODS LTD V STEWARD MUGADZA SC 105/95

At the hearing of this appeal, respondent raised a preliminary point, that the appellant’s grounds of appeal do not raise a point of law as is required in terms of Section 98 (10) of the Act.  It was argued that all the grounds are an attack on the factual issues and do not allege that there was gross misdirection on the law.  That being the case, the appeal is not properly before the Court, so argued the respondent.

Appellant’s main contention was that the use of the word gross is not mandatory if the language used in the ground shows there was a serious misdirection on the facts.  This allows it to become a question of law, so argued appellant.

Appellant’s grounds of appeal as captured in the notice of appeal are that:-

The Arbitrator erred, on a question of law, by

making a finding that the respondent was constructively dismissed when it is trite that constructive dismissal should not only be a measure of last resort but occurs in circumstances where an employee has no other option available to her except resignation.

The respondent had the option to put her complaint of unfair labour practice (if any) with the labour officer for conciliation

The  Arbitrator’s finding in that regard was clearly not supported by the facts and evidence before him.

The Arbitrator clearly committed a grave error of law which ought to be set aside.

The arbitrator erred on a question of law, by failing to appreciate that no	 duress or undue influence was exerted on the respondent to induce her resignation.

The arbitrator did not give due weight to the fact that the circumstances surrounding the respondent’s resignation had taken place in just a few hours (about 3 hours).

Due weight was not given to the fact that respondent was not demoted (although according to the Arbitrator she was demoted) but merely moved to another area within the same premises and even appellant’s executives were sharing office space.

Failure to consider or to deal with a submission made by a party constitutes failure to deal with a matter according to law.

The arbitrator erred at law in holding that respondent’s suspension even assuming it was unlawful constituted a valid cause for claiming constructive dismissal.

Having erroneously made a finding that the respondent’s suspension (which she had completely served without registering any complaints) was null and void; and having concluded that there was “eminent” constructive dismissal of the respondent,

The arbitrator erred on a question of law, by ordering the reinstatement of the respondent and/or the alternative of paying damages in lieu of reinstatement which is untenable since no constructive dismissal took place.

The arbitrator  erred at law in holding that the appellant’s re-organisation of the work place constituted grounds for constructive dismissal on the part of respondent.

What constitutes a point of law has been discussed in many a case and established as

meaning a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in according with what is considered to be the truth and justice of the matter.

meaning, a question as to what the law is.  An appeal on a question of law means an appeal in which the question for argument and determination is what the true rue of law is on a certain matter.

meaning, any question which is within the judge instead of the jury is called a question of law.

MUZUVA V UNITED BOTTLERS (PVT) LTD 1994 (1) ZLR 217 (S) at 200 D – G

A litigant approaching this Court clearly on a point of law as articulated above needs only to aver as such in his grounds of appeal.

Note should be taken of GARWE JA’s  warning that some legal practitioners couch their grounds of appeal with the words “on a point of law” so that on the face of it they appear to raise issues of law when infact they do not.

SABLE CHEMICALS INDUSTRIES LTD V DAVID PETER EASTBROOK SC 18/10.

Where a litigant approaches this Court purely on factual findings he/she is required not only to aver but also show a serious misdirection on the facts which amounts to a misdirection on the law.

GWAUNZA JA emphasized the point in the case of

FLORENCE CHINYANGE V JAGGERS WHOLESALERS SC 24/2004 at p 2 of the cyclostyled judgment

“It is trite that an appeal to this Court from a decision of the Labour Court, should only be on a question of law.

The appellant must in other words not only allege but also show, that the Labour Court misdirected itself on a point of law.” (emphasis added)

It must be apparent from the grounds of appeal

that there is a misdirection on the facts.

A reading of the grounds of appeal shows that the challenge is on the factual findings by the arbitrator.  The first ground raises a factual misdirection, so does the 2nd ground.  The 3rd, 4th and 5th grounds equally go the factual issues.  Appellant does not allege any serious misdirection on these factual issues, nor that these factual misdirections were so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.

See

RESERVE BANK OF ZIMBABWE

V

CORRINE GRANGER

MARTHA MATARUKA SC 34/2001 in which the point was underscored that

“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been 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 decision.  And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.” (Underlining for emphasis).

Can it be said on the evidence placed him the

arbitrator failed to appreciate the facts or made a finding which was contrary to the evidence presented

so as to make the findings appealable to this Court.  Certainly not, in my view.  The arbitrator looked at the facts, to wit,

Respondent was verbally told to attend a “hearing” on the same date.  The provisions of the Code were flouted.

She was suspended for 30 days as a result of the unprocedural hearing.

Upon her return she was moved from her office to share an office at the reception.

This was unilateral variation of working conditions – demotion.

he then applied the law (Section 12 B (3) of the Labour Act and found as a fact that respondent was constructively dismissed.

Having found that Respondent was constructively dismissed, the remedy for unlawful dismissal is reinstatement or alternatively payment of damages.  This is trite.  It cannot therefore be said that the Arbitrator applied the wrong principle.

In the result, I find that this appeal is not properly before this Court for falling short of being on a point of law.  It therefore must be struck off.

Accordingly it is ordered that the appeal be and is hereby struck off with costs.

Wintertons - Appellant’s legal practitioners

Kadzere, Hungwe & Mandevere - Respondent’s legal practitioners