Standacone Holdings v Dick Kadzakumanja

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/840/2014
HARARE, 13 NOVEMBER 2014
CASE NO.
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THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/840/2014

HARARE, 13 NOVEMBER 2014	    		      CASE NO. LC/H/515/12

AND 19 DECEMBER 2014

In the matter between:-

STANDACONE HOLDINGS					Appellant

And

DICK KADZAKUMANJA						Respondent

Before Honourable E. Muchawa, Judge

For Appellant	Ms. S. Nyathi (Legal Practitioners)

For Respondent		In person

MUCHAWA, J:

This is an appeal against an arbitral award which ordered appellant to pay USD 3045.82 to respondent being for cash in lieu of leave, back pay and damages for loss of employment.

Respondent is a former employee of the appellant.  He was employed as a farm clerk from March 2004 to October 2010.

There is a dispute as to whether respondent was employed on a fixed term contract (appellant’s version) or on a contract without limit of time (respondent’s version).  None of the parties produced any contract in support of their allegation.  Respondent claims that he never signed any written contract during the subsistence of his employment.

Respondent was suspected of misconduct in that he had been involved in a theft that took place at appellant’s farm in October 2010.  During the ensuing police investigations, respondent was incarcerated.  Respondent claims to have reported back at work on the 6th November 2010 after he was released by the police.  Respondent claims that appellant verbally suspended him pending his clearance on the theft allegations.

Respondent was then given notification to attend a disciplinary hearing on the 8th February 2011.  It is respondent’s claim that he was found not guilty of the charge of misappropriation of an electric pump under his charge.  There is however no written record of the disciplinary hearing and its outcome.

Further, respondent claims that he was asked to vacate the farm accommodation on the 5th July 2011.  After being cleared of the criminal charges by the court on the 7th September 2011, respondent claims that he presented himself before the farm Manager on the same date.  He claims to have been requested to come to meet the farm owner on the 5th October 2011.  When he did, he was paid $111.00 being outstanding salary for twenty-six (26) days worked in October 2010 and three (3) days in November 2010.

On 19 December 2011 respondent registered a complaint of an alleged unfair dismissal which finally culminated in the arbitral award being appealed against.

Appellant’s version of facts is that respondent was on a monthly fixed term contract.  It is claimed that respondent’s contract expired during his incarceration as he failed to work during that period.  He is said not to have approached appellant for a renewal of the contract.

Appellant explains its failure to produce a copy of the contract by saying that respondent was the custodian of all contracts and he did not produce his contract upon leaving.

The grounds of appeal before me are stated as follows;

“Alleged unfair dismissal and dispute on nature of contract that existed between appellant and respondent.”

The appeal is opposed.

In my opinion, this appeal revolves on the finding regarding the nature of the contract between the parties.  The appellant contests the arbitrator’s finding that there was a contract without limit of time between the parties.  This finding is clearly a finding of fact.

At the hearing of this matter, in submissions before me, appellant’s counsel conceded that, the factual issues presenting in the Heads of argument were appellant’s word against respondent’s word.

This is a clear case therefore where the appeal is difficult to resolve as it does not raise a point of law.  In Reserve Bank of Zimbabwe v Corrine Granger and Anor SC 34-01 this difficulty was explained 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 decision.  And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

It is trite that an appeal to this Court, from an arbitral award, should only be on a question of law in terms of section 98 (10) of the Labour Act.

The appellant has not alleged nor shown that the arbitrator misdirected himself on findings of fact so grossly as to amount to a point of law.

Though appellant claims that respondent was on monthly contracts and that he was incarcerated during police investigations which occurred in or about October/November 2010, he proceeds to claim that respondent’s contract expired in February 2011 and was not renewed.  Appellant’s factual background has a paucity of detail especially regarding dates of contracting, period of incarceration, period when respondent did not work during the tenure of his contract and the number of contract renewals.  A promise to submit further written submissions by appellant’s lawyer by the 20th November 2014 was not honoured.  In any event, I do see how such submissions would have helped appellant as they would center on the factual findings.

I have not been given a basis on which to reopen the factual findings of the arbitrator, which findings cannot be impugned in the circumstances.

I find no merit in appellant’s argument that respondent was on a fixed term contract.

Nothing too turns on respondent’s acceptance of the arrear salaries that were due to him.  I think it is inappropriate to compare such acceptance to that of the retrenched employees in Chidziva & Ors v Zimbabwe Iron and Steel Co Ltd 1997 (2) ZLR 368 who by accepting their retrenchment package were said to have clearly evinced an intention to surrender their rights.  This is because payment of a retrenchment package marks the end of an employer employee relationship whilst this cannot be infered from the payment of arrear salaries.

In similar manner I dismiss the argument that respondent waived his right to sue the appellant by suing a year later.  I find that the delay in enforcing a contractual right is not necessarily a waiver of right especially as the Labour Act provides in section 94 (1) that such a matter prescribes after two years.

Consequently, the appeal being without merit, be and is hereby dismissed with costs.

COGLAN, WELSH & GUEST, Appellant’s legal practitioners