Zimbabwe Institute of Management v Roderick Nhamo Kadungure

### Preamble
Judgment No. SC 115/2020
1
Civil Appeal No. SC 574/18
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DISTRIBUTABLE		(106)

ZIMBABWE     INSTITUTE     OF     MANAGEMENT

v

RODERICK     NHAMO     KADUNGURE

SUPREME COURT OF ZIMBABWE

MAKARAU JA, GUVAVA JA & MAVANGIRA JA

HARARE: JUNE 4, 2019 & SEPTEMBER 18, 2020

L. Uriri, for the appellant

T. Zhuwarara, for the respondent

MAKARAU JA: 	This is an appeal against the whole judgment of the Labour Court handed down on 27 May 2018 dismissing with costs, the appellant’s appeal to that court. The appellant had appealed against an arbitral award finding that it had constructively dismissed the respondent from employment.

Background facts

The respondent was employed by the appellant as its Chief Executive Officer. On 4 July 2013, and purporting to act in terms of the National Employment Code of Conduct, S.I. 15/2005, the appellant suspended the respondent  from employment pending investigations into allegations of serious misconduct. The suspension was with salary and benefits. A fortnight later, on 18 July 2013, the appellant placed the respondent on paid leave. It advised him that it would inform him when to return to work, once investigations had been completed. The letter placing the respondent on paid leave concluded with an admonishment to hold himself available as he was still an employee of the appellant.

On 23 August 2013, the appellant wrote a further letter to the respondent, advising him not to participate in the meetings of Dzidzo House (Pvt) Ltd Board, where he represented the appellant, until his suspension was resolved. The fact that appellant had on 18 July 2013 placed the respondent on paid leave was not adverted to in the letter, throwing the status of the respondent into the air.

On 13 January 2014, some seven months later, the respondent resigned from employment, citing constructive dismissal. In the letter of resignation, he advised the appellant that he viewed its actions over the preceding seven months as a tactic among others, to frustrate and humiliate him. He also alleged that the suspension or paid leave was unending and was meant to break his social and business standing. He viewed his exclusion from participating in the affairs of Dzidzo House (Pvt) Ltd as an indication that he was excluded from all other professional and social engagements in which he had participated as Chief Executive Officer of the appellant. In the past, other employees on leave had been free to attend such. He further referred to a hearing for one of his subordinates which the appellant had just concluded and in which he was called as a witness, as revealing a plot by the appellant’s council to constructively dismiss him from employment.

On the same day that the respondent tendered his resignation, the appellant wrote to him, uplifting the suspension and requesting him to report for duty the following day. The following day, the appellant re-suspended the respondent again.

Alleging that he had been constructively dismissed, the respondent claimed damages. The matter was referred to arbitration. The arbitrator upheld the respondent’s contentions and found that he had been constructively dismissed before awarding him damages in lieu of reinstatement, the quantum of which was to be agreed upon or failing such agreement, to be settled by the arbitrator. Aggrieved by the award, the appellant noted an appeal to the court a quo as stated above.

The proceedings a quo

Before the court a quo the appellant raised four grounds of appeal, which in turn raised three issues. Firstly, it maintained the argument that it had taken before the arbitrator to the effect that the matter was pending before another arbitrator when the award was made. Secondly it argued that the respondent waived his rights by demanding and accepting arrear salary and terminal benefits before filing his claim for constructive dismissal. Finally, it contended that in the circumstances of the matter, the respondent had not been constructively dismissed.

The court a quo agreed with the findings of the arbitrator that the plea of lis pendens was not available to the appellant, that the respondent had not waived his right to claim damages for constructive dismissal, and that the respondent had been constructively dismissed. As indicated above, it dismissed the appeal with costs.

Still aggrieved, the appellant appealed to this Court.

The appeal

Before this Court the appellant raised six grounds of appeal.

I note in passing that the grounds of appeal appear not to have been raised with the intention of reversing and correcting the decision a quo.  The six grounds of appeal, raised as they are against a fairly terse judgement of only four pages, constitute an attack on almost all the statements made by the court a quo in arriving at its decision. On average, each page of the judgment earned itself a ground of appeal or two. The grounds of appeal appear to be a general lashing out and an expression of the appellant’s dissatisfaction with the decision against it.

I reproduce hereunder the six grounds of appeal. These are they:

The court a quo erred and misdirected itself when it determined the plea of lis alibi pendens in resolving the matter, which plea was not before it and had not been relied upon by appellant.

The court a quo consequently erred in failing to set aside the arbitral award which failed to appreciate that the first proceedings brought by the respondent and which were at variance with the latter proceedings could not have been considered to have been withdrawn, appellant having refused to accept such withdrawal.

The court a quo erred in not finding that the demand and acceptance of the terminal benefits by respondent viewed together with the proceedings he had brought before arbitrator Mutsinze amounted to a clear waiver of any rights that he may have had against appellant.

The court a quo erred in finding that appellant’s lawful act of suspending respondent and the natural inconvenience attendant could be relied upon as a circumstance justifying a claim for constructive dismissal.

The court a quo erred and misdirected itself when it was influenced by irrelevant issues such as factoring in the suspension of respondent on 14 January 2014 when respondent had voluntarily resigned on 13 January 2014.

The court a quo erred and misdirected itself when it made a finding that respondent was constructively dismissed, without stating the facts upon which such a conclusion was made.

Notwithstanding their number, the grounds of appeal raise the same three issues that were dismissed by the court a quo and before that, by the arbitrator.  These were whether the court a quo erred at law in holding that the defence of lis pendens was not available to the appellant, in finding that the respondent had not waived his rights to claim damages for constructive dismissal and finally, in upholding the finding by the arbitrator that the respondent had been constructively dismissed.

The Law

Appeals from the court a quo to this Court are only competent if they raise a point of law. This is a trite position at law that is provided for in s 92F of the Labour Act [Chapter 28.01] which specifically provides that an appeal shall lie to the Supreme Court from any decision of the Labour Court only on a question of law.

What constitutes a question of law for the purposes of s 92F of the Labour Act has been defined in a number of cases including Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10, where GARWE JA, relying on the cases of Muzuva v United Bottlers (Pvt) Ltd 1994(1) ZLR 217(S), 220 and Hama v National Railways of Zimbabwe 1996(1) ZLR 664(S), had this to say:

“The term “question of law” is used in three distinct though related senses.  First, it means “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, it means “a question 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”.  And third, “any question which is within the province of the Judge instead of the jury is called a question of law” – see Muzuva v United Bottlers (Pvt) Ltd 1994(1) ZLR 217(S), 220 (D-F).

The position is also settled that a serious misdirection on the facts  amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law.  For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational – see Hama v National Railways of Zimbabwe 1996(1) ZLR 664(S), 670A-B.”

It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.

Analysis

In this appeal, we are not being called upon to determine or pronounce on any rule of law nor are we being called upon to set aside the decision a quo on the basis that it was irrational. Rather, we are being called upon to reverse the decision a quo because the appellant is of the view that on the same facts, a different court may have come to a different conclusion. We are being invited to come to that other conclusion. For reasons that I have stated above, we must decline the invitation.

For completeness, I turn to deal with the three issues that arise from the grounds of appeal.

Whether the court a quo erred at law in holding that the defence of lis pendens was not available to the appellant

The court a quo held that the defence of lis pendens raised by the appellant was unsustainable. In making this finding, the court a quo upheld the finding by the arbitrator to the same effect. Its decision in this regard has been attacked from two fronts. Firstly, it was alleged that the court a quo was on a frolic in making this finding as the appellant had not raised the issue. Secondly and clearly contradicting the first ground, it was alleged that the court a quo erred in not finding that when the arbitral award was issued, the matter was pending before another arbitrator as the appellant had not accepted the withdrawal of the first claim before arbitrator Mutsinze.

It is a reviewable error at law for a court to go on a frolic of its own and determine issues that are not before it. (See Nzara and Ors v Kashumba N.O. and Ors SC18/18).

However, in casu, the court a quo did not commit this error. The issue whether or not the matter was pending before another arbitrator was squarely before it, having been raised as the first ground of appeal a quo.  The court a quo was quite within its rights to determine the issue. Per contra, it is failure to determine the issue which would have constituted a gross irregularity or reviewable error at law, vitiating the decision. (See PG Industries v Bvekerwa SC 53/16).

In motivating the second ground of appeal, counsel sought to argue that the court a quo should have found that the matter was still pending before another arbitrator as the withdrawal of the first proceedings was a nullity at law having occurred when the matter was at judgment stage. Cogent as the argument may sound, it was not an issue a quo. The fact that the appellant intended to insist on and was entitled to judgment in the earlier proceedings was raised for the first time before us and in the appellant’s heads of argument.

In view of the fact that the validity of the withdrawal of the proceedings was not an issue before the court a quo, that court could not have erred as alleged or at all in not determining the issue, it being a trite position at law that a lower court cannot be held to have erred by not determining an issue that was not before it.

In consequence of the fact that the issue was not raised a quo, it cannot be an issue on appeal.

I therefore find against the appellant on the first issue. The court a quo did not err as alleged or at all in dismissing the contention that the defence of lis pendens was correctly dismissed by the arbitrator.

Whether the court a quo erred in failing to find that the respondent had waived his rights to claim damages for constructive dismissal

The appellant sought to argue that the court a quo erred in failing to find that the respondent had waived his right to claim damages for constructive dismissal in the matter. This issue was raised before the arbitrator who dismissed the appellant’s contentions. The arbitrator found, on the facts before her, that the respondent had not waived his rights as alleged. The finding was upheld by the court a quo which was of the view that notwithstanding that the he had received his terminal benefits, “the respondent still had the lawful right to claim damages for unlawful dismissal.”

Whether one has waived his or her rights in any given set of circumstances is a factual inquiry. This is so because waiver is proved by conduct manifesting an intention to abandon one’s rights. The conduct may be express, or implied and must be conveyed to the other party, evincing an intention to abandon accrued or vested rights to claim against the other party. (Chidziva & Ors v Zimbabwe Iron & Steel Co Ltd 1997 (2) ZLR 368 (SC).

In view of the law governing appeals from the court a quo to this Court, no appeal can lie against a finding that there was no conduct on the part of the respondent evincing an intention to abandon his rights to claim for unlawful dismissal.  The ground of appeal raising this issue was therefore incompetent and improperly raised. I will disregard it as if it had been struck out.

On the basis of the above, I find against the appellant on the second issue.

Whether the court a quo erred in upholding the finding by the arbitrator that the respondent had been constructively dismissed.

Finally, I turn to the last issue raised by the appellant. This issue arises from grounds of appeal numbers 4 and 6 which inappropriately, seek to attack the finding by the court a quo that the respondent was constructively dismissed.

Firstly, although the court a quo had the requisite jurisdiction, it did not hear the matter afresh but sat as an appellate court. In that capacity, it had no jurisdiction to make fresh findings of fact in the matter and any findings that it purported to make were in support of earlier findings made by the tribunal of first instance. In this vein, the finding that the respondent had been constructively dismissed was properly and appropriately made by the arbitrator.

The appellant argues and again inappropriately so, that the court a quo erred and misdirected itself in finding that the respondent was constructively dismissed without stating the facts upon which such a conclusion was made. The conclusion made in this regard was not that of the court a quo but of the arbitrator. The court a quo, like this court, did not have any fresh discretion to make a factual finding in the matter. It merely confirmed and upheld the finding in this regard by the arbitrator. There was no allegation or argument before the court a quo and notably before us that the treatment or assessment of the evidence led before the arbitrator was irrational or not in accordance with the law. Instead, the appellant required the court a quo and us in turn, to give fresh opinions on the matter.

The finding that the respondent had been constructively dismissed was made by the arbitrator after an assessment of the evidence that was adduced before her. It was her finding that the appellant as employer had made employment intolerable for the respondent who, as a result, resigned. The evidence giving rise to this finding has not been challenged in any of the grounds of appeal.

To successfully challenge and reverse this finding, the appellant should have alleged and proved that the treatment of the evidence giving rise to this factual finding by the arbitrator was irrational.  This, the appellant did not even attempt to do. Instead, it sought to impugn the decision a quo to uphold the arbitral award firstly on the basis that suspension of the respondent was lawful and the inconvenience that he suffered as a result of the suspension could not amount to constructive dismissal. In doing so, the appellant incorrectly alleged that the suspension of the respondent was lawful. It is common cause that the respondent had been suspended for more than the 14 days stipulated in the National Employment Code of Conduct in terms of which the respondent was suspended.

Secondly, it contended that the court a quo misdirected itself when it was influenced by irrelevant issues such as the re-suspension of the respondent a day after he had resigned.

The court a quo took into account the totality of the events between the dates when the respondent was first suspended to when he was re-suspended after tendering his resignation to buttress the finding by the arbitrator that continued employment had become intolerable for the employee as the appellant was “up to frustrating the respondent”. In doing so, it was not making any fresh findings of fact as contended by the appellant.

To the extent that the last three grounds of appeal relating to this issue seek to challenge a factual finding on appeal without laying the correct basis for doing so, they are incompetent and improperly raised. I will disregard them as if they had been formally struck out.

Disposition

The appeal cannot succeed and must be dismissed in its entirety. Regarding costs, I see no justification why these should not follow the cause.

In the result, I make the following order:

The appeal is dismissed with costs.

GUVAVA JA 			:		I agree

MAVANGIRA JA		:		I agree

Matsikidze & Partners, appellant’s legal practitioners

Chambati & Partners, respondent’s legal practitioners.