Sandvik Mining & Construction v Misheck Mabez

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/575/16
HELD AT HARARE 27 JULY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/575/16

HELD AT HARARE 27 JULY 2016				CASE NO LC/H/105/16

& 23 SEPTEMBER 2016

In the matter between:

SANDVIK MINING & CONSTRUCTION			Appellant

And

MISHECK MABEZA						Respondent

Before The Honourable Muzofa, J

For Appellant			S Sadomba (Legal Practitioner)

For Respondent		V Mkwachari (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award.

The respondent raised a point in limine that the grounds of appeal do not raise questions of law as envisaged by section 98 (10) of the Labour Act [Chapter 28:01].  Section 98 (10) provides

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

What constitutes a question of law has been authoritatively answered in numerous cases including Sable Chemical Industries (Pvt) Ltd V Easterbrook 2010 (1) ZLR 342 and  Reserve Bank of Zimbabwe v Corrine Granger & Another 2001 ZLR (10 sc.  In those cases the Supreme Court discussed what constitutes a question of law.  A question of law is one the law has authoritatively answered, a question as to what the law is and any question as to what the law is and any question within the province of the judge and not the jury.

A question of law also includes a gross misdirection on the facts.  It has been held that a serious misdirection on the facts amounts to a misdirection at law.  To that extent there must be an allegation that there has been a misdirection on the facts.

I will proceed to examine whether the grounds of appeal set out by the appellant raise questions of law bearing in mind the applicable principles.

The first ground of appeal is set out as follows

“The arbitrator grossly misdirected himself in his finding that the respondent had a discretion on whether to return to Unki Mine (the mine) simply because he had delegated duties to one Louis Matizha, thereby overlooking the fact that the appellant had specifically instructed the respondent to return to the mine and not to delegate the instruction to monitor the situation at this mine on the day in question.  In the first place the arbitrator overlooked the fact that the respondent had left the mine was so gross as to amount to a misdirection at law.”

The ground of appeal is far from being concise.  It is expected that grounds of appeal are couched concisely and to the point to clearly raising the issues for determination what is clear is that the ground of appeal impugns factual findings by the arbitrator.  An allegation that there was a gross misdirection is also made.

Two issues are raised in that ground of appeal whether the respondent wilfully disobeyed a lawful order.  In order to determine if indeed there was a gross misdirection on the proven facts the court has to delve into the merits of the case.

In my view there was a misdirection on the facts.  The instruction given to the respondent was clear.  The instruction which was sent by ‘sms’ read

“Misheck LHD24 is down at Unki Mine.

Go back to the mine.  Do not come to Harare until the situation is stable.”

That instruction required the respondent to return to Unki Mine, he did not do so.  It only gave respondent a green light to proceed to Harare when the situation stabilised.

The ground of appeal is therefore properly before the court.

The second ground of appeal also impugns a factual finding by the arbitrator and set out as follows

“Having found that the respondent did not go back to the mine despite being specifically instructed to do so by the appellant. (Sic).  Arbitrator  misdirected himself at law by finding that a physical check on the situation at the mine was not necessary because the respondent had purported to delegate the duty to Matizha who even testified at the disciplinary hearing that the situation at the mine was “unfortunate’ and “tricky”.  Such misdirection was so gross that no sensible person applying their mind to the issue would have properly arrived at such a decision.”

The issue raised in the ground of appeal is whether there was any justification for not complying with the order.    I will allow the ground of appeal as it prima facie subsumed in the first ground of appeal.

The appellant properly conceded that the third ground of appeal be struck off.  The court will therefore not address it.

The fourth ground of appeal raise the issue whether the arbitrator erred by ordering reinstatement or alternatively that parties negotiate damages, failure to agree on the quantum, the parties were to approach the arbitrator for quantification.

I agree with the respondent.  This ground of appeal raise a procedural issue.  Procedural issues are properly raised in an application for review.  An appeal is concerned with the merits of the matter only.

The appellant was at liberty to approach the court to review the manner in which the arbitrator dealt with the case.

The fourth ground of appeal is therefore improperly before the court and is struck off.

From the foregoing the point in limine partially succeeds and the following order is made.

The point in limine partially succeeds, the third and fourth grounds of appeal be and are hereby struck off.

The Registrar is directed to set down the matter.

No order as to costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

TH Chitapi & Associates, respondent’s legal practitioners