Zivai Takura V Sunungurayi Chikukwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/726/14
HELD AT HARARE 16TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/726/14

HELD AT HARARE  16TH OCTOBER 2014 		CASE NO LC/H/444/14

& 24TH OCTOBER 2014

In the matter between:-

ZIVAI TAKURA					`	Appellant

And

SUNUNGURAYI CHIKUKWA				Respondent

Before The Honourable L.M. Murasi, Judge

Appellant			In person

For Respondent		Mr H Ruyi (Trade Unionist)

MURASI, J:

Appellant employed the respondent as a domestic worker.  Following disagreements at the workplace, respondent reported her matter to the union officers culminating in the matter being referred to arbitration.  The Arbitrator found in favour of respondent.  Appellant was not satisfied with the decision and has appealed to this Court.  Appellant’s main contention are, firstly, that the Arbitrator erred in finding that appellant had unlawfully dismissed the respondent.  Secondly, that the Arbitrator erred in finding that the appellant had not granted respondent vacation leave during the period that respondent had worked for her.

In her submissions, appellant stated that she did not dismiss the respondent at all as she was ill at the time and needed respondent’s assistance.  Appellant further stated that respondent left employment on her own volition.  Appellant submitted that respondent had asked for an increment in her salary but she had declined because she could not afford it.  It was her further submission that she had allowed respondent to look for alternative employment whilst still employed by her.  As regards the leave days, appellant stated that the Arbitrator erred in finding that respondent had not been given time to go on vacation leave.  Appellant submitted that respondent had been, over the years, allowed to proceed on vacation leave during school holidays.  The Arbitrator, it was submitted, erred in awarding that appellant pays for the ninety (90) days cash in lieu of leave.

Respondent’s representative submitted that the grounds of appeal did not raise points of law and therefore the appeal should be dismissed on that score.  It was further submitted on behalf of respondent that appellant was unable to show the Arbitrator that respondent had indeed proceeded on leave and therefore could not blame the Arbitrator for finding in favour of respondent.  It was generally argued that there was no misdirection on the part of the Arbitrator.

Precedent has dictated that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of gross misdirection.  This was stated by MALABA DCJ  in Innscor Africa (Pvt) Ltd v Letron Chimoto  S 6/2012 where he states at p 2 of the cyclostyled judgment:

“A principle has now been firmly established to the effect an appellate court should

not interfer with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

Appellant’s submission before the Arbitrator were that the respondent

was not an employee but a “volunteer”.  Appellant did not raise this issue before the Court.  The Court must take it that she now accepts the finding of the Arbitrator that respondent was her employee.  Appellant’s stance before the Arbitrator by stating that respondent was a volunteer is puzzling to say the least having regard to the Founding Affidavit she filed with this Court.  She states:

“”I employed the respondent, Sunungurai Chikukwa in April 2009 as a domestic

worker.  She was engaged on the gazetted wages for the sector.  Her wages were increased subsequently to US$100.00”.

This means that what she submitted before the Arbitrator was incorrect

not to say false.  The question is if respondent had left employment on her own volition, why would she make a report alleging unfair dismissal?  Appellant’s affidavit states that respondent had left on a Saturday and was expected back on the following Monday but she did not turn up.  Appellant states that she was surprised to receive a call from the union office.  The appellant is obviously not being candid with the Court.

As regards the issue of the leave days, appellant avers that respondent was allowed to proceed on vacation leave during school holidays.  The Arbitrator did not believe her and awarded respondent ninety (90) days cash in lieu of leave.  Did the Arbitrator misdirect herself in this regard?  I think not.  The Arbitrator heard evidence from both sides and made a judicious decision on the facts.  The Arbitrator even went on to dismiss some of the respondent’s claims.  I associate myself with the words of NDOU J in Jona Ndalama v Chief Superintendent Happymore Sigauke and Commissioner – General HB 153/2011 at p 2 of the cyclostyled judgment:

“There has to be something grossly irregular in the proceedings to warrant such interference.  The appellate court must never overlook that the trial officer’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective.”

I entirely agree that the Arbitrator was in a better position to assess the

evidence given before her.  The Arbitrator was better placed to assess the demeanour of witnesses and the manner in which the evidence was given.  The court is of the firm view that the Arbitrator’s findings are unassailable.

In  conclusion the Court finds the appeal to be devoid of merit and is accordingly dismissed.  The Court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of C.T. Kadenga dated 5 May 2014 is hereby upheld.

That there be no order as to costs.