Thomas Katewere v Zimnat Asset Management

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/294/2013
HELD AT HARARE ON 25 MARCH, 2013                  CASE NO. LC/ H/737/2011
In the matter between



THOMAS KATEWERE                               –              Appellant
And

ZIMNAT ASSET
MANAGEMENT                                    –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - S.T. Mutema (Legal Practitioner)
For Respondent     - R. Matsikidze (Legal Practitioner)




KUDYA, L.

      This is an appeal against the Arbitrator’s decision where he held that the

Respondent (employee) had failed to demonstrate that the claimant (the

employer) had been in willful default at a quantification hearing before an

Arbitrator.



      The facts of the case are that the employee left employment in

circumstances where he claimed that he had been constructively dismissed and

the employer maintained that he had resigned voluntarily from his job.          At

Arbitration over the constructive dismissal claim the Arbitrator ruled in favour of

the employee. At a later stage the employee approached the Arbitrator for

quantification of damages of the award where the employee had been ruled to
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have been constructively dismissed. The quantification hearing was done in the

absence of the employer notwithstanding the fact that it had been notified

about the date of this hearing.



      The quantifying Arbitrator assessed the evidence which was before him

and reduced the claim which had been made by the employer to a lesser claim.

There after the employee approached the High Court, had the award registered

and execution of the same commenced. It was at the attachment stage that the

employer then approached the courts with a variety of applications some which

were concluded and some which are still to be determined.



    One of those applications resulted in the matter being sent back to the

Arbitrators to re-determine the issue of the employer’s default at the

quantification hearing.   The newly constituted arbitral body ruled that the

employee had failed to demonstrate that the employer had been in willful

default at the quantification hearing. Further to that, he commented that the

employer had been denied the right to be heard hence that case was a good

case for the granting of rescission of the quantification award. He accordingly

ordered that the default quantification order be rescinded to allow the employer

to be heard on the merits of the quantification claim.



     Aggrieved by this award, the employee then appealed to this court arguing

that the grant of rescission was out of order given the facts of the case as a

whole. It is this appeal which is the subject matter of this judgment. The

grounds of appeal were set out as follows;




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   1) Arbitrator erred at law by holding that the employee had failed to

      demonstrate why rescission should not be granted yet the onus lay on

      the employer to prove that it had a good case for rescission.

   2) Arbitrator erred at law by holding that failure to comply with the rules of

      Labour and High Courts in a rescission application was a technicality that

      was insufficient for refusal of grant of rescission judgment application.

   3) Arbitrator erred at law by finding that the employer had not been given a

      chance to be heard yet the award was made in its absence because it

      defaulted at the hearing which it had been properly notified about.

   4) Arbitrator erred at law by not adhering to the principles of rescission of

      default judgment applications that is, the explanation for the default,

      reasonableness and prospects of success.

   5) Arbitrator erred in law by failing to realize that the requirements

      governing rescission applications constituted part of substantive law and

      not mere technicalities.



In response the Respondent stated that:-



      1) Appeal did not raise a point of law as required by Section 98(10) of the

         Labour Act Chapter 28:01. To that extent there was nothing before the

         court. It prayed that on the basis of this point the appeal had to be

         dismissed with costs.

         On the merits it however maintained that

      2) The employee is the one who had stated that the employer had waived

         its right to be heard hence the employee had to substantiate that

         allegation.


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      3) Arbitrator correctly held that denial of the right to be heard was a

         fundamental principle of natural justice and         that it was trite that

         labour matters should not be decided on technicalities

      4) and (5) Arbitrator correctly considered all the factors before the

         granting of the rescission of judgment application and emphasized the

         need to consider the justice of the case in determining labour disputes

         and that the application should be granted on the basis of the fact that

         the employer had been denied the right to be heard. In the result the

         Respondent prayed that the appeal be dismissed with costs.



      When the matter came up for argument the court ordered the parties to

file consolidated heads of argument so that issues in the case would become

clearer given the long history of applications which had been made in the case.

Both parties did that and it is on the basis of those papers that the court

concluded the matter.



      A reading of the first ground of appeal and the response thereto shows

clearly that it raised a point in limine which had to be disposed of before the

matter could be concluded on the merits. This is the issue in respect of whether

there was an appeal before the court if one looks at what the requirements of

Section 98(10) set out for appeals against arbitral awards.



       The law is settled to the extent of the Section quoted by the employee as

well as in light of decided cases on what constitutes a point of law and of fact.

See the case of Sable Chemical Industries Limited vs David Peter Eastbrook




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SC-18-10. It is clear from the cited case that a gross misdirection on the facts of

a particular case can be taken to be a misdirection at law.



      With respect to the facts of the instant case, the Appellant’s grounds of

appeal indicate that the employee has serious issues with how the Arbitrator

interpreted the law as well as the facts of the case before it. It is that which

drove him to have this court intervene to set aside the rescission grant order.

The court is therefore satisfied that the arguments raised by the employee

satisfy the requirements of Section 98(10). To that extent, the appeal is properly

before the court and should be entertained on the merits.



      Turning now to the grounds on the merits, the court agrees with the

Respondent that it is a settled legal principle that he who alleges must prove. It

is the Respondent’s further contention that since the employee alleged that the

employer had waived its right to be heard the employee therefore had to

substantiate that allegation.



      This argument stemmed from the ruling where the Arbitrator made this

analysis “----The Respondent is of the view that the Applicant waived the right to

be heard when they decided (my emphasis) not to attend set hearing on two

occasions. The Respondent did not submit any evidence before this tribunal to

substantiate that there was willful default by the Applicant----“.



       It is worth noting that the Applicant in this case was the employer and

the duty remained on it to show that it had not been in willful default at the

quantification hearing for it to be allowed the chance to be heard. For the


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Arbitrator to shift the onus from the Applicant and place it on the Respondent

merely because the Respondent had said that by absenting itself without good

cause at the quantification stage the employer had waived its right to be heard

was irregular.



      This was   not a licence for the Arbitrator not to require the employer to

justify the relief which it sought. It is also worth noting that the right to be

heard as stated in the case of Chirenga vs Delta Distributors 2003(1) ZLR

517(H) means that the person/party wishing to be so heard should also make

effort to exercise that right. In the instant case where the employer just

defaulted and no cogent reasons given for the default, it was irregular for the

Arbitrator to require the employee to show it that the employer had not been in

willful default. The court is satisfied that such reasoning was a misdirection

which warranted this court’s interference. This appeal ground should therefore

succeed.



Ground 2 and 3



      The legal principles about the right to be heard and undesirability of

deciding labor matters on technicalities were well place. What was however

irregular in the court’s view is the use of these by the Arbitrator to grant the

employer relief which on the facts of the case was not justified. This is so

because, until and unless the employer as the Applicant has satisfied all the

legal requirements entitling it to the   rescission relief it was improper for the

Arbitrator to decide the matter without such being clear before him. To that




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extent the two grounds raised by the employee have merit and the appeal

should be upheld in their respect.



Ground 4 and 5



      These are also intricately tied in with the grounds 2 and 3. Suffice to only

mention that nowhere in the arbitral award does it show how the arbitrator

concluded that the employer had good cause for rescission. The award’s failure

to adequately address that aspect vitiates it and the appeal should also succeed

in this respect. It was imperative for the Arbitrator to explore the circumstances

within which the default occurred before ruling that the employer had been

denied the right to be heard.



      It is clear from the aforegoing that the Arbitrator grossly misdirected

himself by allowing the rescission without a clear legal basis for doing so. In the

result the court is satisfied that the appeal is merited and should succeed in all

the grounds. It is therefore ordered as follows:



      1) Appeal being with merit be and is hereby allowed with costs.

      2) Decision of the Arbitrator dated 23 November 2011 be and is hereby

         set aside. In its place the following order is made

      The Application for rescission of judgment being without merit be and is

      hereby set aside. The quantification order should therefore stand.




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Signed

L. KUDYA                        --------------------------------------------

President Labour Court




Gunje and Chasakara – Appellant’s Legal Practitioners

Matsikidze and Mucheche - Respondent’s Legal Practitioners




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