Rufaro Marketing (Pvt) Ltd v Daniel Mutiwadirwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 MARCH 2025
JUDGMENT NO LC/H/182/25
CASE NO LC/H/51/25
In the matter between:-
RUFARO MARKETING (PVT) LTD
APPELLANT
RESPONDENT
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IN THE LABOUR COURT OF

ZIMBABWE HARARE, 20 MARCH 2025

In the matter between:-

RUFARO MARKETING (PVT) LTD

DANIEL MUTIWADIRWA

Before the Honourable Kudya J

For the Appellant    C. Kwaramba (Legal Practitioner )

For the Respondent    L. Nyamudeza (Legal Practitioner)

KUDYA, J:

This is an appeal against the arbitrator’s award of 5 November 2024 which set US 54 000 as the value of the motor vehicle benefit which should be given to the respondent employee by the appellant employer.

The background facts of the matter are that, the respondent lost his job with the appellant when he had not been given a motor vehicle which he was supposed to get as part of his benefits. The appellant offered him US 20 000 as the car benefit but he did not accept that. This led them to appear before the arbitrator who ruled that respondent be paid USD 54 000 instead. The employer is unhappy with that award, hence the appeal which is the subject of this judgement.

The employer raises the appeal grounds which can be summarised as follows:-

1) Arbitrator grossly erred by plucking the award of USD 54 000 from the air as there was no evidence to support it.
2) Arbitrator grossly erred by accepting that $20,000 was within appellant’s means yet contradicted himself by making a $54,000 award. He acted irrationally in that regard.

3) Arbitrator grossly erred by making the award based on generalised entitlements of Chief Executive Officers and Finances executives in the industry without relating the same to the particular circumstances of the appellant so he allowed extraneous or irrelevant factors to guide him.

4) Arbitrator grossly erred by contracting for the parties. He said the award was in line with what a finance executive had to be awarded yet the contract was silent on the type of motor vehicle which the respondent had to be given. Arbitrator improperly took away the employer’s discretion to decide what motor vehicle to avail to the respondent based on its capacity and its personal circumstances.

In the result that appellant prayed that, the appeal succeeds with costs, that the award of USD 54,000 be set aside and be substituted with an award of USD 20,000 as motor vehicle compensation for the respondent.

In response to the appeal, the employee stated in *limine* that, the appeal is out of time so it should be struck off with costs. On the merits, it maintained in summary that:

1) Award of USD 54,000 was correctly made based on the difference between the CEO and Finance Executive salary scale and benefits. The quotations which arbitrator was favoured with were only guidelines. No figure was plucked from the air by the arbitrator. The award was a 75% of US $75,000.

2) Financial incapacity was not proven by the appellant. Arbitrator used a grounded analysis of capacity and the role of the respondent within the organisation. The appellant’s position was unsupported so the arbitral award cannot be faulted.

3) Appeal ground 3 is not clear and precise. There are no particulars of the facts which are said to be common cause. If it is accepted to be in order, the ground is however unmerited. Arbitrator used a grounded analyses of the facts of the matter to arrive at an award of USD 54,000.

4) Arbitrator did not contract for the parties. The award was based on the conditions of a Financial Executive regard being had to the fact that, on respondent’s escalation to Chief Executive Officer position, only his salary changed and the benefits remained as those of a Finance Executive. Indeed, the contract did not specify the type of motor vehicle but respondent was deprived of same for over 10 years. Appellant could therefore not seek to use it as discretion at the $11^{\text{th}}$ hour and, failure to exercise such is what led the parties to appear before the arbitrator to have the motor vehicle benefit value determined.

In the result the respondent prayed that the appeal be dismissed with costs for lack of merit. On the date of the appeal hearing the respondent dropped the point in limine thus leaving for determination only the merits of the appeal. This judgement therefore only addresses the merits of the appeal. Each of the grounds is discussed below:-

**Ground 1**

It is settled that; the appeal court is slow to interfere with the exercise of discretion by a trier of fact. See **Nyahondo v Hokonya and others 1997(2) ZLR 457**. See also **Hama v NRZ1996(1) ZLR 664**. In this ground, appellant says $54 000 was plucked from the air. It need be noted that, in coming up with the US $4 000 figure the arbitrator considered that financial executives of other organisations were entitled to the motor vehicle makes which the respondent brought in as his evidence. He considered also, the fact that, there was no contrary evidence to controvert the position as set out by the respondent.

Whilst the appellant harped on financial incapacity, it did not favour the arbitrator with what it could claim as due to similarly placed executives within its industry. It can therefore not fault the arbitrator for relying only, on the respondent’s evidence. It therefore, cannot be said that, the arbitrator plucked the figure from the air. It is granted that, the contract was silent on the type of car but, the minute the employee made out his case of what he considered to be his entitlement, the employer was duty bound to rebut that by giving evidence of a contrary picture. The financial incapacity tag could not be used to give the contrary position. Such was ill pleaded so, it could not avail the employer. The ground is therefore without merit, so it should fail.

**Ground 2**

The employer says once the financial incapacity argument had been accepted by the arbitrator, he should have should have endorsed the employer’s $20 000 offer. As stated in ground 1 above, the question of financial incapacity was neither here nor there. The question centred on what car was the employee to get. He made out his case of what he said he had to get. The employee did not bring any contrary evidence so there is no blowing of hot and cold which the employer complains about. The ground is also without foundation and should fail.
 Ground 3

The law is indeed clear that a tribunal should not rely on extraneous factors. See Munyikwa v Handivhunduki and another HMA 19/24 In the case at hand, there was nothing extraneous about the arbitrator using what similarly placed executives were entitled to. It was not his duty to go into the field to find out how differently placed executives were given such benefits. That duty remained with the employer and the employee alike. The employee did his part and the employer shied away from giving a contrary position. There is therefore no basis to fault the grounded approach which was used by the arbitrator. The ground being without merit should also fail.

GROUND 4

It is settled that the court or arbitrator should not contract for the parties. See Falyn Investments Pvt Ltd v Thema HH 273/23. In the case at hand, the parties contracted on an unspecified vehicle. The employee set out his case why he was of the view that he was entitled to what he claimed. The employer only chose to argue that it could afford $20000. That was its error. As the employee correctly observed, it was the employer’s failure to exercise its discretion which led the parties to ask the arbitrator to decide the issue. Employer simply folded its hands and stated that, what it could afford is what it was offering.

As started earlier, it was not an issue of affordability which the arbitrator was seized with. He therefore, cannot be accused of contracting for the parties. All he did, was to give effect to the motivated and uncontroverted position presented by the employee. The ground is therefore without merit so should fail.

In the ultimate, all the appeal grounds being without merit should fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Mbidzo, Muchadehama and Makoni, Applicant’s Legal Practitioners


Rujuwa Attorneys, Respondent’s Legal Practitioners
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