Skyhaven Guest House V Deary Mwaimboti

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/369/25
HARARE, 06 OCTOBER 2025
CASE No. LCH
473/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/369/25 HARARE, 06 OCTOBER 2025		CASE No. LCH 473/25

In the matter between:

SKYHAVEN GUEST HOUSE	APPELLANT

AND DEARY

MWAIMBOTI	RESPONDENT

Before the Honourable KUDYA J

For the Applicant	-Chidari B, Manager

For the Respondent	-Masasire K, Legal Practitioner

Kudya J

This is an appeal and cross appeal in respect of an arbitral award by the Honourable Arbitrator F Mandeya handed down on 27 April 2025. The appeal and cross appeal are in terms of Rule 19 as read with section 92E of the Labour Act [Chapter 28:01].

At the hearing, the employer abandoned the points in limine which it had earlier on raised and urged the court to deal with the case on the merits. The employee also abandoned her point in limine where she was arguing that the appeal grounds were inelegantly crafted. She went on to allow the employer to amend its grounds of appeal and prayed also that the matter be determined on the merits.

FACTUAL BACKGROUND

The employee was in the employer’s employ in a position whose designation was contentious between the parties. There is a factual difference in the submissions on the position held by the employee. The employer says, the employee was initially employed

as a house maid and later employed as a receptionist at the Guest house. The employee insists that she was employed as a supervisor.

At some point, during the currency of the employment relationship, the employee got injured. She says, she could not attend to her work duties due to the injury. Employer says, the injury notwithstanding; the employee repudiated the contract by staying away from work and this caused it to engage a replacement employee.

The employee alleges that; she was unfairly dismissed without any hearing having been conducted. This caused her to approach the conciliator for a resolution of the unfair dismissal. When conciliation failed, the matter was referred to an arbitrator.

The arbitrator concluded that the employee was unfairly dismissed. He dismissed her claim for wage arrears and for underpayment of wages despite having concluded that the employee was a supervisor. He awarded her cash in liue of 28 days leave.

The employer is unhappy with the conclusion that the employee was unfairly dismissed It is also unhappy with the cash in lieu of leave award. It is however happy with the dismissal of the claim of wage arrears.

On the other hand, the employee is happy with the conclusion that she was unfairly dismissed and that she is entitled to cash in lieu of leave. She is however unhappy with the fact that, the arbitrator dismissed her claim for wage arrears and did not award her claim for underpayment of wages

It is the misgivings which both parties have about the award which drove them to appeal and counter appeal to the labour court

The employer’s grounds of appeal can be summarized as follows:

Arbitrator erred on a question of law and misdirected himself by concluding that the employee was unfairly dismissed yet, the employee repudiated the contract when she went on sick leave and

did not come back or produce a sick leave note to confirm her alleged continued sickness. Employee at some later stage collected her belongings and went away with office records thus making it difficult for the employer to contact her and conduct disciplinary proceedings against her. Efforts to get the employee’s details through the WhatsApp platform also proved fruitless.

Arbitrator erred by awarding cash in liue of leave of USD 310.40 for 28 days’ vacation leave yet, that was not part of the claims referred to him for arbitration.

In the result, employer prayed that the appeal be allowed with costs, that the Arbitral award on unfair dismissal and reinstatement dated 27 April 2025 be set aside and be substituted by the order that the employee self-terminated her employment contract by going AWOL and is not a candidate for reinstatement. Further, it prayed that, the portion of the award on cash in lieu of leave days be set aside and be substituted by the order that the claim of cash in lieu of leave days be dismissed as it falls outside the arbitrator’s terms of reference.

On the other hand, the employee’s response in summary was that:

Arbitrator did not err or misdirect himself in concluding that the employee was unfairly dismissed and that she was entitled to cash in lieu of leave. The employee was dismissed without a disciplinary hearing and the employer has not paid the employee cash in lieu of leave.

The employee prayed that the appeal be dismissed with costs on an attorney client scale as it is without merit.

The employee also filed a cross appeal to the following effect:

The arbitrator having found that appellant was employed as a supervisor and her minimum salary was USD228 against the USD 180 she was earning erred and misdirected himself in dismissing her claim of underpayment thereby prejudicing her in the sum of USD 1122.00 as underpayment of salaries.

The employee prayed that the cross appeal be allowed with costs and that the portion of the arbitral award on underpayment dated 27 April 2025 be set aside and be substituted with an order that:

The claim of underpayment by claimant be and is hereby granted

The respondent be and is hereby ordered to pay claimant the sum total of USD 1122 being underpayment of salaries from December 2023 to November 2024

The respondent to pay costs of suit on an attorney client scale

Each of the grounds of appeal and the cross appeal is discussed below:

WHETHER ARBITRATOR WAS WRONG TO CONCLUDE THAT EMPLOYEE WAS UNFAIRLY DISMISSED

The approach that an appellate court is enjoined to take has been clarified in a myriad of cases. In Mettallion Gold Zimbabwe v Golden Million Pvt Ltd the Supreme court held as follows

” It is settled that an appellate court will not interfere with factual findings made by a trial court unless those findings were grossly unreasonable in the sense that no tribunal applying its mind to the same facts would have arrived at the same conclusion, or that the court had taken leave of its senses, or put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it’’

In Dube v Murehwa SC 68/21the court stated as follows

‘’ it is settled that this court will not easily interfere with factual findings made by a lower court unless there has been such a gross misdirection by that court on the facts so as to amount to a misdirection in law, in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.’’

In the matter of Reserve Bank of Zimbabwe v Granger SC 34/04 the court held as follows

‘’ 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 a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.’’

The grounds under which an appellate court may interfere with a decision of the lower court was also outlined in the following manner in Barros & Anor v Chimphonda 1999

(1) ZLR (S) @62G- 63A

‘’ These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters guide or affect it, if it mistakes the facts, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for doing so. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.’’

The arbitrator concluded that the employee was unfairly dismissed. He reasoned that, the employer is responsible for recruiting employees and has a duty to terminate the employment relationship, depending on the circumstances of the case.

He stated further that; employment can only be terminated at the instance of the employee through retirement or resignation. See Section 12 (4a) Labour Act Chapter 28:01

He further reasoned that, where an employer is unsure of the correct legal route to follow in case of a disagreement with an employee, the employer should be guided by the law in navigating that impasse.

He observed that, there was no documentary evidence to show that the employer observed the provisions of section 12( 4a ) Labour Act which among other provisions obliges the employer to conduct disciplinary proceedings if there is allegation of misconduct on the part of the employee,

He dismissed the employer’s explanation that it had requested contact details from the employee and she had refused to give it. His basis for not being persuaded by that, was that there is proof of WhatsApp communication between the parties which had been tendered. The communication related to the time when the complainant was injured and was not coming to work.

He also did not believe the averment that the employee came to take her belongings and disappeared since no evidence was submitted to support this.

In its submission in this court, the employer argued that, the employee was supposed to submit a sick leave note showing that she had indeed been sick. It argued further that a sick note is mandatory whenever the employee absents herself from work owing to sickness.

See section 14 of the Labour Act Chapter 28:1 on sick leave.

In response to the sick leave note argument, the employee was adamant that she did not furnish the employer with such as she was injured at work, meaning that the employer was aware that she was at home nursing the said injury.

For completeness of record, it needs to be pointed out that the sick leave note argument was not presented before the arbitrator. As such, the arbitrator only relied mainly on the WhatsApp communication between the parties over the period in question. He concluded that, the employer could have summonsed the employee for disciplinary hearing if it was of the view that the employee was away from duty without official leave.

An assessment of the conclusions arrived at by the arbitrator leaves this court with no doubt that faced with the same set of facts, this court would have ruled in the same manner as was done by the arbitrator. The cumulative effect of the arbitral findings leads to one inescapable conclusion that the employer could discipline the employee if it genuinely believed that the employee was away without official leave or was abusing the period which she was off duty nursing the injury. Its failure to institute disciplinary proceedings invited adverse findings by the arbitrator. This court also

notes that, the sick leave note argument does not change the complexion of the matter, more particularly, where the employer was in touch with the employee

This court therefore finds no reason to interfere with the factual findings made by the arbitrator on this point. As earlier outlined, factual findings will not be interfered with unless the findings were grossly unreasonable, in the sense that, no tribunal applying its mind to the same facts would have arrived at the same conclusion. It cannot be said, in arriving at the conclusions discussed above, the arbitrator had taken leave of his senses.

Even if this court considers that, had it been the trial court, it could have approached the issues differently, and taken a different course, that is not sufficient to warrant the interference with the exercise of discretion of the arbitrator’s decision.

Discretion can only be interfered with where it has been shown that some error has been made in exercising discretion. This is not the case in casu as there has not been any error notable, inviting interference. This ground is thus dismissed.

WHETHER THE ARBITRATOR ERRED BY ORDERING PAYMENT OF CASH IN LIEU OF LEAVE.

The appellant argues that the arbitrator erred and misdirected himself in awarding cash in lieu of leave for vacation leave days due to the employee, when this was not part of the terms of reference to the arbitrator.

The position of the law on the terms of reference in the conciliatory process has evolved through a number of cases. In Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015(1) 335 6/15 at page 5 of the cyclostyled judgment outlined the starting point in every decision to refer the dispute for arbitration in the following manner:

‘’ Where a dispute is referred to compulsory arbitration by a labour officer, section 98(4) of the Labour Act Chapter 28:01 enjoins the officer to determine the arbitrator’s terms of reference after consultation with the parties to the dispute.’’

Central to the theme is that parties play an important role in determining the terms of reference to be referred to the arbitrator.

The same point was emphasized in Metallon Gold Zimbabwe (Pvt) Ltd & Anor v Collen 2015 (1) 509 Gura HH 263/16 where it was held thus:

‘’ However, the procedure for submission is that the matter commences with conciliation before a labour officer in terms of section 93 of the Labour Act. When conciliation fails, the labour officer then refers the dispute to compulsory arbitration in terms of s 98. In doing so, the labour officer consults the parties for the arbitrator’s terms of reference to be drawn. The arbitrator is confined to the agreed terms of reference during the arbitral process…. if the arbitrator goes beyond the terms of reference that may be a ground for objection to the registration of the arbitral award.’’

The learned author Brand in his book titled Labour Dispute Resolution (2nd ed.2008)

at page 163 says the following:

‘’ In private arbitration the arbitration agreement plays a pivotal role. It embodies a description of the dispute to be referred to arbitration, it names the arbitrator, it specifies the terms of reference and the arbitrator’s powers, it sets out the process before the actual hearing and finally, it describes the process to be followed during the hearing.’’

Arbitration by its nature is an adjudication which follows defined processes. In Total Support Management (Pty) Ltd & Anor v Diversified Health Systems (SA) 661 SCA at page 673 H-I the court had this to say:

‘’ The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication and are equally free to modify or withdraw that power at any time by way of further agreement.

It is this axiomatic that the jurisdiction and powers of an arbitrator are determined by agreement between the disputant parties. The terms of reference define the dispute to be resolved and the manner in which it is to be resolved. The arbitrator’s mandate

flows from and is limited by the terms of reference. To put it differently, the arbitrator derives his jurisdiction and powers from the arbitration agreement between the parties.

The position is no different under s 93(1) of the Labour Act. The jurisdiction and powers of an arbitrator are established and assumed by dint of the agreement of all parties involved and their voluntary submission to the arbitral process and its jurisdiction. The arbitrator is not endowed with jurisdiction by the labour officer or conciliator. It is the disputant parties themselves who vest the arbitrator with jurisdiction, notwithstanding any preceding or parallel lis or contestatio between them. In other words, it is the voluntary and consensual nature of arbitration that determines the scope of the arbitrator’s jurisdiction and powers where any matter is referred to arbitration in terms of section 93(1) of the Labour Act.’’

The record of proceedings a quo indicates that, there appeared to be a confusion on the part of the conciliator as to what exactly the parties agreed to refer for arbitration. On L.R 4 form attached at page 24 of the record; the issue of cash in lieu of leave is not there on the referral under issues to be arbitrated on. However, on the L.R 5 form at page 25 of the consolidated record, the arbitrator is asked to decide whether or not the claimant is owed cash in lieu of leave.

The two documents are both dated 13 February 2025. What plays out from this, is the fact that, the parties intended to include a discussion on cash in lieu of leave days as part of issues that the arbitrator was supposed to adjudicate on.

In any event, the issue was discussed during the arbitration proceedings showing that it was indeed treated as a live issue between the parties requiring to be settled.

It is the court’s finding that the issue was a live one which had to be resolved as it had been raised at conciliation stage and had not been resolved. The LR 5 form which was referred to above has cash in lieu of leave as part of the terms of reference raised by the parties for adjudication.

Suffice to point out is the fact that, the parties play an important role in crafting the issues for determination during arbitration. The conciliator cannot simply ignore issues raised by the parties without resolving them. A conciliator should be guided by the parties in coming up with the terms of reference.

It is the court’s finding that the arbitrator was indeed empowered to adjudicate on the cash in lieu of leave days as the parties had raised it and brought it up for adjudication. The ground of appeal is therefore dismissed.

CROSS APPEAL

At the hearing in this court, the employee abandoned prayer for punitive costs and moved the court to order that each party bears its own costs in both the main appeal and the cross appeal. The employer was also persuaded to pray that costs in both matters be on the basis that each party bears own costs, The critical issue in the cross appeal is whether the arbitrator misdirected himself by not granting the claim for underpayment

The employee avers that the arbitrator made a finding that she was a supervisor. However, having made that finding, he dismissed the claim for underpayment of wages.

The law is clear on this point. The question that needs to asked is, whether this question raises a question of law, which question can be raised at any time including in the appeal process. I can do no better in answering this question than what was discussed in the case of Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR (S) wherein it was outlined thus:

‘It is settled law that a question of law can be raised at any time, even for the first time on appeal, as long as the point is covered in the pleadings and its consideration involves no unfairness to the party against whom it is directed.’

In Muskwe v Nyajina & Ors SC 17/12, the court stated the same principle thus;

‘’ Undoubtedly, a point of law can be raised at any time even though not pleaded. However, this is subject to certain considerations, one of which is that the court has to consider whether raising a point a point of law at this juncture would cause prejudice to the party against whom it is raised.’’

Clearly, the arbitrator erred in that, having found that the employee was a supervisor, he denied her the payment to which she was entitled. This was grossly unreasonable for the reason that, he

had already found as a matter of fact that the employee was employed as a supervisor. It is clear that, having found this, the court a quo was enjoined to consider and grant the statutory amount which was payable to the appellant in the cross appeal.

The amount was clearly ascertainable. The error made can be interfered with by this court. The statutory amount that a supervisor was supposed to be paid was US $282-00. Instead, she was being paid US$180-00. She has to be paid the amount by which she was being underpaid which is USD 282 less USD180 equals USD102 multiplied by ten months equals USD1020

Before the arbitrator parties were ad idem that the underpayment was for 10 months. However, before this court the employer changed position and submitted that, if it were to be found liable for payment of the underpayment claim it would only be liable for two months.

The law is clear that a party cannot approbate and reprobate at the same time. See The Trustees for the time being of Cornerstone Trust and 2 others v NMB Bank Limited SC 97/21. The court therefore, finds that the employee was underpaid for 10 months, the period which parties submitted before the arbitrator.

DISPOSITION

In view of the fact that, the two grounds of appeal raised in the main appeal lack merit, the court dismisses the appeal for want of merit. Each party shall bear its own costs.

For the cross appeal, this court makes a finding that, the court a quo erred in not awarding the employee the amount for the supervisor grade which she belonged to. That error ought to be corrected. In the result the court orders as follows:

The cross appeal being merited it be and herby succeeds.

The paragraph in the arbitral award dismissing the claim of underpayment of wages be and is hereby set aside, in its place, the claim for underpayment of salaries succeeds with each party bearing its own costs.

The employer is ordered to pay the employee underpayment of salaries in the sum of USD $1 020- 00 or its equivalent ZiG amount on the date of payment.

Each party shall bear its own costs

Masasire Law Chamber	Respondents Legal Practitioners