Rita Marque Mbatha v Confederation of Zimbabwe Industries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/801/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/801/16

CASE NO. LC/H/APP/877/16

HELD AT HARARE

ON 16 NOVEMBER & 16 DECEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

RITA MARQUE MBATHA					APPLICANT

AND

CONFEDERATION OF ZIMBABWE INDUSTRIES	RESPONDENT

Applicant							In Person

For Respondent						Mr. H. Mutasa

MURASI J.,

This Court allowed respondent’s appeal against the decision of the arbitrator. Applicant is dissatisfied with that decision and intends to approach the Supreme Court on appeal. This application is in terms of section 92F (1) of the Labour Court Act (Chapter 28:01).

The brief facts are that applicant was employed by the respondent. Applicant lodged a complaint against respondent’s Chief Executive Officer for alleged sexual harassment. The applicant was alleged to have been involved in a fight with a fellow employee and disciplinary proceedings were instituted against her. The disciplinary committee found her guilty and recommended her dismissal. The matter ended up in arbitration and the arbitrator found in favour of the applicant and her reinstatement. Respondent appealed against this decision to this Court and the Court found that the arbitrator’s decision could not be upheld having regard to the facts of as reflected in the record of proceedings. Applicant is of the view that this Court’s decision was wrong. Applicant’s intended grounds of appeal are formulated as follows:

1. That the judgment of the court a quo countenances a breach of the Applicant’s constitutional rights both in substance and the manner the hearing was heard.

2. The appeal application noted by the Respondent was not served on the Applicant.

3. The court a quo erred on a point of law in that it was grossly irrational for the Presiding Judge to rely on unsigned and unconfirmed minutes of the disciplinary hearing yet there was evidence by Mrs. Doreen Ndlovu to the contrary.

4. The court a quo erred on a point of law by concluding that the Appellant was lawfully and fairly dismissed from employment.

5. The court a quo erred on a point of law by overlooking the fact that Appellant’s dismissal was handled by Respondent’s Chief Executive Officer who sat in the disciplinary hearing and was always pestering her for sexual favours and hence biased in his decision was not handled by an impartial and independent authority.

6. The Presiding Judge of the court a quo was biased as he dealt with extraneous factors not before him by way of evidence and which did not form part of Respondent’s pleadings.

7. The court a quo erred on a point of law by overlooking the fact that the Respondent had directly admitted sexually harassing the Appellant in its grounds of appeal particularly number 1 wherein stated as follows:

“the Honourable Arbitrator grossly misdirected herself when she proceeded to determine the matter on the basis that no action had been taken against the Second Respondent following First Respondent’s report on alleged sexual harassment.”

8. The Presiding Officer erred in law in dealing with an appeal which had been dismissed on the 28th of October, 2015 as per record of proceedings as no reinstatement of appeal had been done.

At the commencement of the proceedings Mr. Mutasa was not present as Ms. Zakeo, assigned to seek for the matter to be stood down, stated that he was engaged in the High Court and had requested that the matter be stood down until he had finished his matter at the High Court. Applicant expressed her dissatisfaction at the arrangement stating that respondent should have at least informed her of that position. The Court exercised its discretion and stood down the matter to be heard at 11.00 hours.

At the resumption of the proceedings, the Applicant stated that she abided by the documents filed of record and had nothing to add. She further stated that she would respond to any submissions made by the Respondent. In her Founding Affidavit filed of record, the Applicant avers that issues being raised in the appeal to the Constitutional Court are of importance to the functioning and growth of a constitutional democracy and will have relevance not only to the case at hand but also to the functioning of the workplace. The affidavit in the preliminary stages dwells on the history of the complaint against sexual harassment and correspondence between Applicant and the Respondent’s Chief Executive Officer. Applicant further makes the submission that Respondent’s Appeals Committee was not properly constituted. Applicant makes the following averment in the affidavit:

“In the tainted minutes Doreen Ndlovu stated clearly stated that ‘she provoked me’ resulting in an altercation. For some unknown reasons the pertinent admission was ignored.

The admission by Doreen was pertinent and indicated that contrary to the findings made she was the aggressor but the admission was overlooked by the Presiding Officer for unexplained reasons.”

The Applicant takes issue with the minutes which she terms ‘unsigned and undated’ and states that these minutes are contrary to what Doreen Ndlovu stated in her letter denying the contents of the minutes concerned and that the Court had ignored this pertinent evidence. Applicant submits in that affidavit that the appeal was not served on her and she had made a request that she be properly served with the Notice of Appeal. Applicant makes the averment that Respondent’s appeal was dismissed on 28 October 2015 and that the Court had relied on the unsigned and undated minutes and Respondent had not made any submissions referred to by the Court. Applicant makes the following submission:

“The findings of the Presiding Officer are in total variance with the pleadings filed of record and further does not state why the minutes which were not referenced, undated, unsigned and unconfirmed were used to make a final decision.”

Applicant makes the following averment:

“In further breach of Applicant’s right to a fair hearing, the Presiding Officer refused to stand down the matter to enable the Applicant to have access to the record and avail me the correct index and did not give reasons and failed to provide reasons for doing so in its judgment. In simple terms I was denied the right to be heard.”

Applicant alleges that Respondent did not in argument on appeal deny that the minutes had not been signed and that the Court was indeed biased and that she has been treated in a discriminatory manner and that Respondent has been accorded a privilege which has not been extended to her. Applicant further submits that she did not have a fair hearing and that the proceedings should not be allowed to stand.

Applicant further makes the following assertion:

“I strongly assert that as chronicled above the conduct of the Presiding Officer sustains the inference that, in fact, he was not open-minded, impartial and fair during the trial. The failure to appreciate my oral submissions, contents of my pleadings, ignoring pertinent evidence which further clarified in our Heads of argument further justifies the conclusion that the Presiding Officer was biased and his conduct was designed to produce a result favourable to the Respondent.”

Mr. Mutasa, for the Respondent, submitted that the application was without merit and hould be dismissed and that all the grounds of appeal do not have any chance of succeeding. Mr. Mutasa raised the issue that the Draft Notice of Appeal was addressed to the Labour Court instead of the Supreme Court and was thus defective. In attacking the first ground of appeal, Mr. Mutasa stated that alleged breach of constitutional rights was mischievous as the Applicant never sought time to prepare for the hearing and that she was making allegations against a Judge after the hearing. Mr. Mutasa further stated that Applicant had previously made the same allegations in the Supreme Court against JUSTICE  CHATUKUTA  when she had not made any application for time to prepare before the Judge. As far as the second ground of appeal was concerned, it was submitted that it was not a valid ground of appeal. In addressing the third ground of appeal, Mr. Mutasa stated that the minutes were signed as reflected on page 47 of the record and that Applicant was in the habit of denying the existence of documents which did not favour her story. Mr. Mutasa concluded by saying that the whole appeal was frivolous and should be dismissed. He further argued that Applicant should be mulcted with costs as the previous court applications in the Supreme Court, High Court and the Labour Court had ordered that she pay the costs.

In response, Applicant stated she believed that her appeal should succeed in the Supreme Court and that she should not be denied the right to approach the Supreme Court where she is of the view that her rights have been abrogated. She referred to an instant where a judgment was given within ten (10) minutes when she was supposed to have read a bulky record. Applicant further stated that the minutes show that the last page was a forgery. She denied having made numerous applications and that indeed it was the Respondent who had made more applications in this regard and that these had been made with the intention to wear her down.

In making a determination of whether to grant leave to appeal the court has to ascertain whether the grounds of appeal satisfy the provisions of section 92 F (1). They should be on points of law. In examining whether there are reasonable prospects of success on appeal, the court will take into consideration the prospects of the Supreme Court arriving at a different decision on the same facts. The Supreme Court will only interfer where the decision is so unreasonable to the extent that no reasonable court, given the same facts, would have arrived at that decision. (See Innscor Africa (Pvt) Ltd vs Letron Chimoto S 6-12)

I will therefore proceed to deal with the grounds of appeal seriatum.  The first ground of appeal alleges that there was a breach of applicant’s constitutional rights in substance and the manner the hearing was heard. The Court will thus refer to the Founding Affidavit which has been extensively quoted elsewhere in this judgment. The facts show that the matter was set down as a result of the Supreme Court Order that it should have been dealt with by 30 June 2016. The record further shows that Applicant became was aware of this date as she wrote a letter to the Registrar on 23 May 2016 stating that she had already filed her Heads of Argument. Applicant then informed the Registrar in subsequent correspondence that indeed this appeal had been dismissed. Applicant duly appeared on 13 June 2016 for the hearing. Applicant did not make any application to have the matter stood down or postponed. The record does not show this. In fact it was the Respondent’s Counsel who sought to raise a point in limine which the Court dismissed and ordered to the proceedings to go on. How then were Applicant’s constitutional rights abrogated in the circumstances? The record does not show any breach of Applicant’s constitutional rights. The record does not show that an application was made by the Applicant to the matter stood down or postponed. How is the Supreme Court expected to deal with this ground of appeal? It does not appear ex facie the record that there was such a breach. Applicant further alleges that the breach of her rights were in substance. This again is not borne out of the record. It is my view that there no prospects of success on this ground of appeal.

The second ground of appeal alleges that the appeal application noted by the Respondent was not served on the Applicant. Firstly, this ground of appeal does not satisfy the provisions section 92 F (1). It is not on a point law. Secondly, it is procedural issue which should be brought by way of review and not on appeal. What is the Supreme Court being called upon to determine on this ground of appeal? Lastly, it flies in the face of existing facts already referred to above where Applicant clearly states to the Registrar that she had filed her Heads of Argument. One would assume that a litigant will only file such documents when he/she is aware of the nature of the appeal before the court. Again, I am of the view that there no valid ground of appeal.

The third ground of appeal avers that the Court was grossly irrational to rely on unsigned and unconfirmed minutes of the disciplinary hearing yet there was evidence by Mrs. Doreen Ndlovu to the contrary. It appears that the issue of the minutes being unsigned and unconfirmed is at the centre of Applicant’s case. It is my view it should be determined in terms of what the record shows. Firstly, the arbitrator refers to the minutes in her findings and this Court refers to those findings on page 4 of the judgment. Applicant does not take issue with the arbitrator using the ‘unsigned and unconfirmed minutes’. It must be remembered that this Court was dealing with an appeal against the decision of the arbitrator. The arbitrator had used the same minutes to make a determination and the Court was therefore obliged to refer to the same minutes whether signed or not. Secondly, the record shows that the disciplinary hearing was held first on 6 June 2003 and then on 13 June 2003. Applicant does not deny the composition of the panel as reflected in the minutes and the fact that she later engaged the services of Mr. Manase, a legal practitioner, who caused all witnesses to be recalled. In short, she does not take issue with the contents of the minutes of the disciplinary hearing.

Thirdly, the letter which Applicant wants the Court to take into account was written on 30 June 2003, well after the disciplinary hearing. It is not part of the proceedings which the Court was to take into consideration in making a determination of whether the Applicant was unfairly dismissed or not. It could not and should not have been taken into account. The question is whether the Supreme Court is likely to determine that this Court should have taken that letter into account? Hardly. There are no prospects of success on this ground of appeal.

The fourth ground of appeal alleges that the Court erred in finding that the Applicant was lawfully and fairly dismissed from employment. This is a finding of fact. What the Applicant should aver is that there was a gross misdirection in the finding of fact that was made by the Court. There is no such averment. The second issue to note is that having regard to the facts shown in minutes of the disciplinary hearing, there is would be no hesitation in arriving at that conclusion. Again, I find that there are no prospects of success on appeal on this ground.

The fifth ground of appeal alleges that the Court erred on a point of law in overlooking the fact that Applicant’s dismissal was handled by the Respondent’s Chief Executive Officer. There is further averment that this Chief Executive Officer ‘was always pestering her for sexual favours and hence biased in his decision’. Elsewhere in this judgment I made reference to the fact that the minutes of the disciplinary committee show the composition of the panel. The minutes do not show that the hearing was chaired by the Respondent’s Chief Executive Officer. Further, Applicant has not challenged the composition of that panel and her legal practitioner, Mr. Manase, does not raise this issue during the hearing. Did this Court ‘overlook’ the fact that Respondent’s Chief Executive Officer sat in the disciplinary committee? Firstly, this does not appear ex facie the record as the Chief Executive Officer was also a witness in the hearing. If my understanding of Applicant’s use of the word ‘sat’ is to mean ‘preside’, then the record does not show this and the Court could not have taken it into account. Will the Supreme interfer with the Court’s decision on this score? I do not think so.

The sixth ground of appeal alleges that the Court was biased as it dealt with extraneous factors not before it by way of evidence and which did not form part of Respondent’s pleadings. I will deal with second part of the ground of appeal first. This was an appeal from the decision of the arbitrator. The arbitrator’s decision was based on the minutes of the disciplinary committee. The Court had to determine the matter having regard to the Respondent’s grounds of appeal, the decision of the arbitrator and the minutes of the disciplinary committee. Evidently, in such a situation, the Court could not rely solely on ‘Respondent’s pleadings’. The Court had to rely on the record. I am of the view that this answers Applicant’s first allegation that the Court was biased. If the ‘bias’ emanated from a determination of the record, then the Supreme Court is unlikely to interfer with the decision as this is what an appellate court is expected to do and this Court was sitting in that capacity. There are no prospects of success on this ground.

The seventh ground of appeal alleges that the court erred on a point of law by overlooking the fact that the Respondent had directly admitted sexually harassing the Appellant in its grounds of appeal. Firstly, the Court was not dealing with the issue of sexual harassment in the appeal. The grounds of appeal did not require that the Court make a determination of whether or not there was sexual harassment. Secondly, the quoted part of the Respondent’s grounds of appeal is not, in my view, a direct admission of sexual harassment. The third issue is what is the Supreme Court being called to determine on this ground of appeal? Whether or not there was sexual harassment? What is the point of law being raised? I see none.

The last ground of appeal states that the court erred in dealing with an appeal which had been dismissed on 28 October 2015. I am of the view that this ground of appeal is clearly frivolous and vexatious. The record shows that the matter was heard In Chambers before PATEL JA on 18 May 2016 and the following Consent Order was made:

“1.The application be withdrawn and be removed from the roll.

2. The applicant is directed to file her heads of argument as the 1st respondent in the appeal pending before the Labour Court in Case No. LC/H/336/14 (the main appeal) by not later than 4.00pm on the 23rd of May 2016.

3. The Registrar of the Labour Court be and is hereby ordered to set down the main appeal for hearing forthwith to be heard on or before the 30th of June 2016.

4. Each party shall bear its own costs in respect of this application.”

As clearly shown, this Order was made by Consent. This was made on 18 May 2016. This was obviously after the appeal had been dismissed as alleged in the ground of appeal!! What is the Supreme Court supposed to make out of this ground of appeal? It is evidently a mischievous ground of appeal. In fact, this Consent Order really answers some of the issues raised by Applicant that she was not afforded a fair hearing. She was supposed to file Heads of Argument by 23 May 2016 in terms of the Consent Order. There was no Order that she be served with the Respondent’s grounds of appeal and therefore the second ground of appeal is one arising out of mischief as Applicant was aware of this Order.

I will now deal with other issues raised in the Founding Affidavit which are not part of the selected grounds of appeal. I have reproduced extensively some allegations made by the Applicant against the Court. In making an assessment of allegations of bias, a Court is required to be as objective as is possible. The Applicant avers that the Court was not ‘open-minded’ and did not take her pleadings into account. I am mindful of the fact the Court overturned a decision that was in Applicant’s favour. However, what is pertinent is that the Court had to make a determination on the grounds of appeal filed with the Court against the determination by the arbitrator. A reading of the record clearly showed that the arbitrator’s reasoning was inconsistent with what was on record. Such a decision could not be allowed to stand. In making the determination the Court had regard to what both parties stated in submissions. Applicant’s submissions supported the fact that the arbitrator was correct. The Court’s view was different. Clearly the issue of bias does not arise in these circumstances. The record shows for itself what the disciplinary committee heard in evidence. I have already dealt with the issue of the minutes of the disciplinary proceedings elsewhere in this judgment which does not necessitate any repetition. It is my view that the judgment of this Court which was based on the record of proceedings clearly reflect a conscious effort to act in a judicious and fair manner.

A party seeking leave to appeal must demonstrate that there are prospects of success on appeal as leave cannot be granted just because a party has sought such leave. (See Fiona Chikurunhe & 234 Ors vs Zimbabwe Financial Holdings S 10-2008, per GARWE JA) It is my firm view that the Applicant has been unable to demonstrate that the Supreme Court is likely to interfer with the decision of this Court.

In the result, I find the application for leave to appeal to the Supreme Court to be devoid of merit and it is accordingly dismissed with no order as to costs.

GILL, GODLONTON & GERRANS-		Respondent’s legal practitioners