ZECO Holdings (Pvt) LTD V Heath C Cobertt

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/219/16
HELD AT HARARE 29 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/219/16

HELD AT HARARE 29 FEBRUARY 2016			CASE NO LC/H/1000/15

& 22 APRIL 2016

In the matter between:

ZECO HOLDINGS (PVT) LTD				Appellant

And

HEATH C COBERTT					Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr G Gomwe (Legal practitioner)

For Respondent		Ms S Nkomo (legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award in favour of the respondent.  Respondent was employed by Zimplastics (Pvt) Ltd, a member of the Corbett Company up to March 2008 before the company was taken over by the appellant.  Respondent alleged unlawful and wrongful dismissal on 17 March 2011 through a verbal instruction to a Mr Roly Sylvester Hugh Corbett.  The matter went for conciliation and subsequently arbitration.  An award was given, appealed against resulting in remittal to the tribunal.  The arbitrator ruled that respondent was unfairly and unlawfully dismissed.  He ordered reinstatement with full salary and benefits and if no longer possible, parties were to negotiate damages in lieu of reinstatement.  If parties failed to reach agreement they were free to approach the tribunal for quantification.

Aggrieved, appellant noted an appeal in this court on the following grounds;

The honourable arbitrator grossly erred and misdirected himself on the law and on the facts such misdirection amounting to a question of law by ordering reinstatement of the respondent.

The honourable arbitrator grossly erred and misdirected himself on the law and on the facts such misdirection amounting to a question of law in ruling that the respondent was entitled to US1600.00 in the absence of any proof that there was the salary level obtaining at the time.

The honourable arbitrator grossly erred and misdirected himself on the law and on the facts such misdirection amounting to a question of law in ruling that there was a contractual relationship between the respondent and Zimplastics (Pvt) Ltd in the absence of any binding contract of employment.

The honourable arbitrator grossly erred and misdirected himself on the law and on the facts such misdirection amounting to a question of law by making an arbitral award that is grossly unreasonable such that any reasonable person would arrive at a different conclusion given the same facts.

Appellant prayed for the setting aside of the award.

In response respondent stated that appellant has not shown how the arbitrator

misdirected himself in ordering reinstatement or alternatively the payment of damages in lieu of reinstatement.  Respondent also stated that appellant has not substantiated the absence of proof of respondent’s salary as the arbitrator had used a copy of the “Mapple Salaries” payroll produced by him.  Respondent further stated that the arbitrator correctly relied on section 16 of the Labour Act [Chapter 28:01] providing for transfer of undertaking and concluded that respondent was employed by Zimplastics (Pvt) Ltd prior to its takeover by appellant.  With regards to the last ground of appeal, respondent stated that appellant is clutching at straws and is clearly making an attempt to frustrate respondent as it has not stated or tried to substantiate the unreasonableness of the award by the honourable arbitrator.  Respondent prayed for the dismissal of the appeal with costs.

The first ground of appeal criticises the arbitrator for ordering reinstatement.  It is trite that reinstatement is the appropriate remedy for wrongful and unlawful dismissal.  See Olivine Industries (Pvt) Ltd v Caution Nharara SC 88/05 Art Corporation Ltd v Moyana 1989 (1) ZLR 304.  The honourable arbitrator held that the board of directors’ resolution of 17 March 2011 effectively terminated respondent’s contract of employment.  The board resolution was to the effect that no shareholder and Board member shall hold a substantive position as an employee of the company.  Page 122 of the record contains a share certificate which confirms that respondent holds shares in ZECO Holdings Ltd.  The arbitrator’s finding therefore cannot be faulted.  In addition the arbitrator stated that appellant failed to indicate that it dismissed the respondent in terms of the Code of Conduct or in terms of S.I. 15 of 2006. Appellant argued that respondent abandoned his work station in a manner consistent with repudiation of the employment contract.  The arbitrator held that if indeed respondent had repudiated the contract of employment by not reporting for duties, appellant should have invoked section 4 (e) of S.I. 15/06 and preferred the misconduct of absenteeism against respondent.

Appellant has repeated the submissions made before the arbitrator, that respondent failed to properly establish the existence of his employment relationship with appellant.  Appellant argues that respondent has not disclosed the exact date in which he was engaged by Zimplastics (Pvt) Ltd.  In my view appellant is seeking proof beyond a reasonable doubt.  The standard of proof in civil matters is on a balance of probabilities.  See ZESA V Dera 1998 (1) ZLR 506.  The record of proceedings contains correspondence that reveals that respondent was a manager at Zimplastics (Pvt) Ltd.  On a balance of probabilities the employment relationship was established.  The arbitrator’s finding therefore cannot be faulted.  I therefore find no merit in the first ground of appeal.

The second ground of appeal criticises the arbitrator for ruling that respondent was entitled to US$1600.00.  Appellant argues that there was no proof that that was the salary level obtaining at the time.  The arbitrator clearly outlined the process leading to the finding that $1600.00 was the appropriate salary.  On page 12 of the award he reveals that he relied on a pay roll “maple salaries” dated 2 April 2011 produced by respondent.  The arbitrator commented that the pay roll and method of payment and bank details are generated by the employer and not the employee. The arbitrator further commented that no evidence was produced by either party in support of the salary level obtaining at the time except the production of the payroll “maple salaries” in unites states dollars generated 3 April 2011 which indicated respondent’s salary as $1600.00 per month.  The arbitrator cannot be faulted for relying on what was placed before him.  Appellant could have produced evidence to clarify the issue of remuneration but did not do so.  As stated by the arbitrator, it is the duty of the employer to prove the conditions of service applicable to the employee in terms of the contract of employment.  I therefore find no merit in the second ground of appeal.

The third ground of appeal criticises the arbitrator for finding that there was a contractual relationship between respondent and Zimplastics (Pvt) Ltd in the absence of  any binding contract of employment.  As stated above, appellant seems to be demanding proof beyond a reasonable doubt, which is improper.  The arbitrator stated that  respondent submitted that he was employed by Zimplastics (Pvt) Ltd, a member of the Corbett company up to March 2008 before the company was taken over by ZECO Holdings (Pvt) Ltd.  Appellant has not put in issue the fact that Zimplastics (Pvt) Ltd was taken over by ZECO Holdings (Pvt) Ltd.  All it is insisting on is proof of employment.  The arbitrator’s finding therefore cannot be regarded as so unreasonable that no sensible person applying his mind to the facts would have arrived at that decision.   I therefore find no merit in the third ground of appeal.

The fourth ground of appeal criticises the arbitrator for making an award that is grossly unreasonable such that any reasonable person would arrive at a different conclusion given the same facts.  It is trite that an appeal court will not interfere with the exercise of discretion simply on the basis that if it had been in the position of the lower court, it would have taken a different course.  See S v Nhumwa SC 40/88.  Baros & Anor v Chimpondah 1999 (1) ZLR 58.  I am not persuaded that there is any basis for interfering with the arbitrator’s discretion.

In the final analysis there is no merit in the appeal and the following order is appropriate.

The appeal be and is hereby dismissed with costs.

Mutamangira & Associates, appellant’s legal practitioners

Sinyoro & Partners, respondent’s legal practitioners