Rita M. Mbatha v National Foods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/219/2013
HARARE, 9 SEPTEMBER 2011
CASE NO. LC/H/460/2010
JUDGMENT NO.LC/H/219/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/219/2013

HARARE, 9 SEPTEMBER 2011			          CASE NO. LC/H/460/2010

In the matter between

RITA M. MBATHA				-			Appellant

And

NATIONAL FOODS			-			Respondent

Before The Honourable President - B.T. Chivizhe

For Appellant 	-	Ms R. Mbatha (In Person)

Respondent		-	Mr A. Maguchu (Legal Practitioner)

CHIVIZHE, B.T.:

The matter was heard as an appeal against an arbitral award handed down by the Honourable Mugumisi on 21 August 2010.

The background facts to the matter are as follows;

The Appellant was employed by the Respondent as a Personal Assistant to the Managing Director.  Through a letter dated 24 June, 2009 Appellant was advised of the abolition of the position owing to low business volumes and a restructuring exercise.  She then raised a grievance regarding the manner in which the matter had been handled by the Respondent.  When Respondent failed to respond, she  referred a complaint to the labour officer seeking intervention.  Upon failure by the Labour Officer to conciliate a Certificate of No Settlement was issued.  The matter was subsequently referred for compulsory arbitration before an Arbitrator.

The terms of reference before Arbitrator Gabilo who heard the matter were as follows;

To determine whether the dispute was properly before a Labour Officer or not

Whether the employer had committed an unfair labour practice

Whether or not the employer unilaterally varied the contract of employment.

In the arbitral award handed down on 30th October, 2009 Arbitrator Gabilo directed Respondent to reinstate Appellant and endeavor to find an alternative position in another business unit.  In the event that Respondent failed to find the alternative position the parties were to negotiate a severance package in lieu of reinstatement.  The parties were to approach the Arbitrator in the event of failure to agree on the quantum of severance package. The Appellant was advised to tackle issues of fuel entitlement and cell phone allowances through the applicable dispute resolution mechanism.  The Respondent was given 30 days in which to comply with the ruling.

It is common cause that the Respondent reinstated the Appellant after four months on 1st of March, 2010.  In the meantime Respondent filed an appeal against reinstatement with the Labour Court reference LC/H/441/09.  The appeal was later withdrawn.  On 5th March 2010 in an attempt to address Arbitrator’s recommendations Respondent held an appeal hearing at the workplace.  At the hearing Appellant failed to produce contract of employment or a Collective Bargaining Agreement (as suggested by Arbitrator) covering her claims for fuel and cellphone allowances.  Respondent consequently did not pay.  Upon re-engagement the Appellant raised further grievances.  When the Respondent allegedly failed to address the grievances, the Appellant then resigned from employment she consequently raised a complaint again with the Labour Officer of constructive dismissal by the Respondent.  The matter could not be settled at conciliation resulting in its referral to the second Arbitrator Mugumisi.  The terms of reference were for the Arbitrator to determine whether or not there was constructive dismissal and on that basis determine the appropriate remedy.  In an arbitral award handed down on 21st of August, 2010 the Arbitrator concluded as follows;

On the basis of the above observations I can only rule that I have found no evidence to support the claim to constructive dismissal as raised by the Claimant.  Accordingly, the claim is thrown out for lack of evidence.

Aggrieved by this decision the Appellant then noted the present appeal with the Labour Court.

The Appellant has presented a rather long-winded two page narrative as representing her grounds of appeal . The following can however be discerned from her papers to be the grounds of appeal;

whether the state of the office allocated to the Appellant amounted to constructive dismissal

whether the Appellant had been deprived of fuel and cellphone allowances in a unilateral variation of contract

whether the networking of Appellant’s printer also amounted to constructive dismissal

whether the denial of access to internet amounted to constructive dismissal

whether Respondent committed an unfair labour practice when it increased salaries for all staff save for those who were on forced leave including Appellant

The Respondent having raised a point in limine that the appeal does not raise points of law the Court shall initially address that point. That point is important as clearly in Section 98(10) of the Labour Act [Cap 28:01] an appeal from any decision of an Arbitrator to the Labour Court has to be on a point of law. It follows therefore that a determination has to be made as to whether the grounds of appeal raise questions of law.

The term “question of law” has been considered and extensively debated in our jurisdiction. The leading authority is the matter of Muzuva vs. United Bottlers (Pvt Ltd. 1994 (1) ZLR 217 (S) where it was found the term could be used in three distinct though related sense. In the first sense it means “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 accordance with what is considered to be the truth and justice of the matter”. Secondly, it means  “a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. The third sense is not relevant for the purposes of this appeal.

It is common cause the appeal is based on a claim of constructive dismissal. Constructive dismissal which has now been codified by Section 12B2(a) of the Labour Act [Chapter 28:01] refers to a situation where an employee is entitled to or forced to resign in reaction to his/her employer’s behavior under circumstances where the employer has made life so difficult for the employee that the employee had to leave. To determine whether an employee has been constructively dismissed requires that the facts surrounding the termination of employment be thoroughly and critically examined from an objective point of view.

The Arbitrator prefaced his award with a background to the subject of constructive dismissal. He examined the law as it currently stands including case authorities. The Arbitrator Mugumisi then made critical findings which formed the basis of conclusion and the award.

Firstly for his convenience he divided claims by Appellant into Pre-Arbitrator Gabilo and Post-Arbitral Gabilo. He then addressed individually the claims by Appellant and made specific findings in respect of each.

He found that the issue of fuel entitlements and cellphone allowances were outstanding issues post Arbitrator Gabilo’s determination. Arbitrator Gabilo had directed that those issues be resolved though the necessary and applicable dispute resolution mechanism.

As these claims had later on been addressed by the employer through a hearing on 5th March 2010, the Appellant failed to produce her original contract of employment to prove her entitlement to same Arbitrator Mugumisi dismissed the claims on the basis of lack of evidence.

Arbitrator Mugumisi also found that post Arbitrator Gabilo award the Appellant had raised issues such as delay in reinstatement, the state of her new office, the lack of internet access, the lack of confidentiality surrounding the printer and unilateral variation of her contract of employment.

The Arbitrator Mugumisi found that although the Appellant’s designation had been varied the rest of her claims were not critical and did not contribute to make her continued employment intolerable. He found for example the fact that Appellant was denied access to internet was not critical to her work; the fact that the printer was accessible as a default printer to other users was not sufficient ground for a claim of constructive dismissal. With regards the issue of delay in her reinstatement he noted that the Appellant had not been prejudiced as she was on full salary and benefits at the relevant time. On the state of the office after personally conducting an inspection in loco, the Arbitrator Mugumisi concluded that although the employer needed to address some issues such as stairs that needed to be adjusted to be gender sensitive and also ensure that windows that did not open were opened he generally found the office to be habitable.

Secondly, the Arbitrator generally concluded that the claim by the Appellant that her contract had been unilaterally altered was unsubstantiated as she failed to produce her original contract before him.

In conclusion the appeal must fail in its entirety because none of the grounds of appeal raise any issues of law. The Arbitrator found as a fact that the circumstances raised by the Appellant were all not sufficient to constitute constructive dismissal. He also felt that if the Appellant genuinely felt aggrieved she should have lodged a formal  as grievance against the Respondent in these matters. It is very clear to me having analysed the Arbitrator’s findings and the determination that no question of law arises from the determination by the Arbitrator in either the first or second sense as referred to in Muzuva case supra.

The appeal is accordingly dismissed with  no order as to costs.