Stanley Mayor v Brewtech Engineering

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/643/16
HELD AT HARARE ON 10TH OCTOBER, 2016
CASE NO. LC/H/290/14
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/643/16

HELD AT HARARE ON 10TH OCTOBER, 2016 	CASE NO. LC/H/290/14

AND 21ST OCTOBER, 2016				X REF: LC/H/244/14

In the matter between:-

STANLEY MAYOR								    Appellant

And

BREWTECH ENGINEERING						    Respondent

Before the Honourable Mhuri, J.

(IN CHAMBERS)

MHURI J.

The Court is proceeding in terms of Section 89 (2)(a)(i) of the Labour Act [Chapter 28:01] THE ACT which reads:

“In the exercise of its functions, the Labour Court may –

On the case of an appeal –

Conduct a hearing into the matter or decide it on the record; or

…………………………………”

(Emphasis added)

An arbitral award was issued by Arbitrator Pasipanodya on the 24th February, 2014, wherein he dismissed both the Appellant’s claim and Respondent’s counter claim, and also declared that Appellant had resigned from Respondent’s employ.

It is interesting to note that after having been aggrieved by this award and the Arbitrator’s findings, Appellant lodged two (2) appeals in this Court both on the same grounds.  The first appeal was filed under case number LC/H/244/14 on the 18th March, 2014 by his legal practitioners H. Mukonoweshuro & Partners.  The second appeal was filed under case number LC/H/290/16 on the 3rd April, 2014 by his union representative T. Mupeti of Zimbabwe Federation of Trade Unions (ZFTU).

I will take it that by lodging the second appeal, Appellant was abandoning the first appeal.

I will proceed to deal with appeal LC/H/290/16.

Appellant’s grounds of appeal are as follows:-

The Arbitrator erred by diverting the whole issue from the terms of reference and dwelt on whether Applicant was retrenched or not yet the issue referred was for him to decide on the quantum of the package and whether the retrenchment was appropriately done.  The date when the termination took effect.

The Arbitrator did not allow for a hearing.

The Applicant did not resign.

Appellant was retrenched and Respondent wanted to impose a package.

Respondent offered notice pay to show that he was the one who initiated termination.

Respondent barred Applicant from continuing with employment whilst Applicant insisted that his employment was still there.

Appellant prayed that the award be set aside and he be paid a fair package.

It is a trite position of the law that appeals against arbitral awards must be premised on a point of law.  Section 98 (10) of the Act 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 a question of law, has been well established in case law to mean first –

“a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.”

second –

“…… a quest ion as to what the law is.  Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.”

third……………………….

A reading of all the grounds of appeal shows that they fall foul of section 98(10), they do not fall under the ambit of the definition of what a question of law is.  There is no averment either, that the arbitrator grossly misdirected himself on the facts which misdirection amounts to a question of law.

See:	MUZUVA vs UNITED BOTTLERS (PRIVATE) LIMITED 1994 (1) ZLR 217 (S)

HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S)

SABLE CHEMICAL INDUSTRIES LIMITED vs DAVID PETER EASTERBROOK SC 18/10

Form LR4 reference to arbitration states issues to be arbitrated upon as

Whether or not the retrenchment was lawful.

Appropriate remedy in the circumstances.

The first page of the arbitration award states issues in dispute as

Whether or not claimant was retrenched or did he resign.

Appropriate remedy.

The Arbitrator made a factual finding that Appellant was not retrenched but resigned.  This is not appealable.  Not allowing a hearing, this is equally not appealable grounds 4, 5 & 6 fall under the finding of whether or not Appellant was retrenched or resigned.  They are equally not appealable.

In the result the appeal being improperly before this Court it is ordered that it be and is hereby struck off.

This judgment equally disposes of the appeal LC/H/244/14 filed by Appellant on the 18th March, 2014.