Alpha Gurupira v Tobacco Processors of Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/76/2016
HARARE, 12 JANUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/76/2016

HARARE, 12 JANUARY 2016			          	       CASE NO. LC/H/872/15

AND 19 FEBRUARY  2016

In the matter between:-

ALPHA GURUPIRA							Appellant

And

TOBACCO PROCESSORS OF ZIMBABWE (PVT) LTD		Respondent

Before The Honourable F.C. Maxwell, Judge

Appellant			In person

For Respondent		Mr R Chingwena (Legal Practitioner)

MAXWELL, J:

This is an appeal against two interim awards and a quantification award.  Appellant was employed by respondent in the human resources department.  On 14 January 2010 she was dismissed from employment for misconduct.  She appealed against her dismissal.  On 16 December 2011 this Court set aside her dismissal and ordered respondent to conduct a re-hearing on penalty.  Pending the outcome of the re-hearing, appellant was to remain on suspension without pay and benefits.

Several court applications followed.  In December 2012 the parties held a meeting at which an out of court settlement was discussed.  On 18 December 2012 the parties agreed that employment was no longer tenable and the matter should be referred to a labour officer to determine damages.  Several other court applications followed.

Subsequently the matter went before a labour officer who issued a certificate of no settlement.  The matter was referred to arbitration.  Two interim awards were issued.  In the first interim award the arbitrator turned down appellant’s application for an inspection in loco.  In the second interim award the arbitrator determined that appellant was entitled to compensation for the period February 2010 to August 2012.  A final award was made in September 2015 wherein the arbitrator ordered;

That the claimant shall be paid a total gross amount of USD189 817.50 as back pay.

That the amount shall be taxed in line with applicable taxation regulations.

That no interest has been awarded.

On 1 October 2015 appellant noted this appeal.  The grounds of appeal go up to number ten but can be summarised into four issues.

Whether or not the arbitrator erred by finding that appellant had repudiated her contract of employment.

That the decision on the final quantum of back pay is based on evidence that was not served on applicant.  The arbitrator erred by ignoring evidence of what the parties had agreed on earlier.

That the tribunal terminated the contract between the parties when the contract remained extant up to date and up to a time when respondent has reinstated appellant by paying the full back pay and thereafter damages in lieu of reinstatement.

That the tribunal erred by not awarding interest.

The record indicates that respondent did not file a response.  Appellant filed a chamber application for the granting of the appeal in default of a response from the respondent.  On 9 December 2015 this Court turned down the application for granting the appeal in default and ordered that the appeal be set down for hearing on the merits.

Appellant filed heads of argument in which she raised points in limine that respondent had not complied with Rule 15 (b) (i) and (ii) of this court’s rules.  She further pointed out that respondent had dirty hands as it had not complied with the order of this court.  She stated that she insisted on being reinstated first by way of back pay but respondent has deliberately refused to comply with the order for the past 4 years.  The order of this court referred to set aside the appellant’s dismissal and remitted the matter to the respondent’s Works Council for a rehearing of the appropriate penalty.  Further, the order stated;

“Pending the outcome of the rehearing by respondent in paragraph 2, appellant is deemed to be on suspension without pay and benefits.”

Appellant seems to be challenging the Court order before the very same court that made it.  She states in her heads of argument that the suspension without pay could be for a period not exceeding ten days if regard is had to the Tobacco Industry Code of Conduct, 1995, SI 322 of 1996 she further argues in paragraph 1.2.2 of her heads of argument.

“It follows therefore from the code as read with the judgment that the suspension could only have sustained for a maximum of ten days, after which applicant was to be reinstated forthwith.”

Clearly her argument is not sound as the judgment clearly stated that the suspension was up to the time that there was an outcome of the rehearing that the court had ordered.  Reference to the code of conduct is misplaced as the suspension was to be on the terms ordered by the court.  Appellant agreed to abandon the point in limine for the matter to be determined on the merits.

Appellant argues that the tribunal erred by not putting the burden of proof on respondent on whether or not appellant had permission to engage in part time consultancy work.  She argues that respondent had initially agreed but changed its mind.  She correctly states that the law requires that he who alleges should prove.  What she does not appreciate is that the burden of proof is on her as she is the one who is alleging that initially she was permitted to engage in part time work.  The arbitrator stated in the interim award of 27 July 2015 that claimant (now applellant) disclosed her mitigatory efforts and it is not in dispute that there was no consensus from the respondent as it emerged that the respondent accused her of breaching the contractual relationship by seeking alternative employment regardless of it being for temporary engagement.  The arbitrator further stated that though claimant proffered that respondent was aware of her other engagements as a consultant elsewhere such was not supported by any evidence that prior permission was given.  The first issue raised in grounds of appeal cannot succeed.  For appellant to raise the same issue before this court without pointing out any misdirection on the arbitrator’s finding is improper.  Appellant is not referring this court to any evidence that she provided to the arbitrator that was disregarded as evidence that respondent had given her permission to engage in consultancy work.

Appellant also erroneously argues that;

“The contract between the parties remains extant until respondent has reinstated applicant by way of back pay and hereafter damages in lieu of reinstatement.”

In her view the tribunal terminated the contract between the parties by deciding to award back pay up to August 2012.  This, she argues, the tribunal had no jurisdiction to do.  Issues of jurisdiction cannot be raised in an appeal.  In accordance with section 92EE inserted into the Labour Act by the Labour Amendment Act No.5 of 2015, absence of jurisdiction is a ground of review.  In any event there is no legal basis for the submission that a contract remains extant until the payment of all obligations under it.  Parties can lawfully terminate their contract whilst there are outstanding obligations.  The payment of outstanding dues will be a different cause of action.  As a result of her erroneous argument, appellant has been continuously revising the amounts that she claims she is owed.

The arbitrator ruled that the contract between the parties terminated in August 2012.  As a result what she is owed is only up to August 2012.  The appellant gives the impression that she believes she can appeal against anything that she does not agree with with the arbitrator.  Appeals from arbitral awards are governed by section 98 (10) of the Labour Act [Chapter 28:01].  They have to be on points of law only.  Appellant is aggrieved by a lot of the factual findings made by the arbitrator.  It is trite that a serious misdirection on the facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.  See Chinyange v Jaggers Wholesalers SC 24/04, National Foods v Mugadza SC/05/95.  Appellant does not demonstrate that the factual findings by the arbitrator qualify to be a misdirection in law.

Respondent filed heads of argument in which it is pointed out that the appeal is not on a question of law.  At the hearing the parties agreed to abandon preliminary issues.  It further stated that appellant had no dispensation to engage in work elsewhere without authority.  Respondent confirmed that appellant was entitled to 75% of school fees limited to a maximum of 3 children contrary to the award of 75% of salary.  Respondent objected to appellant’s revision of amounts claimed to be owed her on the basis that appellant kept on creating evidence as the matter proceeded and after every stage.  She submitted documents after the tribunal had made a decision on preliminary issues.

This court is a court of appeal and is not hearing this matter afresh.  The arbitrator’s decisions are examined in the light of the evidence that was placed before him.  Anything that was brought in after a decision was made cannot be used to assess the correctness of the decision already made.  An appeal is decided on the four corners of the record of proceedings.  See Sirdars Manufacturers (Pvt) Ltd v Chinga 1995 (1) ZLR 368.  All the documents that were not before the arbitrator are improperly before this court and will therefore be disregarded.

With the leave of the Court, appellant filed supplementary heads of arguments in response to the respondent’s heads of argument.  Attached to the supplementary heads of argument is a summary of Back Pay claim for period February 2010 to November 2015.  As stated above appellant is entitled to payment up to August 2012.

Now considering the second issue raised in the grounds of appeal, appellant is raising a procedural issue. Appellant is aggrieved that the final quantum of damages is based on evidence that was not served on her.  Such an issue cannot be properly raised on appeal.  It is a ground for review and therefore cannot succeed.  As stated in Administrative Law Guide in Zimbabwe by G. Feltore, 4th edition, 2006, on review, the court is not delving into the substantive correctness of the decision, but is only determining whether there were any procedural irregularities or any action which was reviewable.  Appellant also contends that the arbitrator ignored evidence of what the parties had agreed on earlier.  This is a factual issue which appellant is raising without demonstrating that the arbitrator’s actions were so irrational as to amount to a misdirection in law.  The second issue in the grounds of appeal is therefore improperly before this court.

The third issue in the grounds of appeal is whether or not the contract between the parties was extant at the time of the arbitral proceedings and up to the time of paying full back pay and damages in lieu of reinstatement.  This issue has already been dealt with above.  There is no legal basis for the position taken by appellant.  The contract of employment was terminated when appellant engaged in employment with a third party when she was still on suspension.

The last issue raised in the grounds of appeals faults the tribunal for not awarding interest.  The arbitrator exercised his discretion.  It is trite that an appellate court will not interfere with the exercise of discretion unless such exercise has been afflicted by a serious misdirection.  See Cosmo Cellular (Pvt) Ltd v P.T.C.  2004 (2) ZLR 176.  I am not persuaded that there is any reason to interfere with the tribunal’s discretion in this matter.

In the final analysis, there is a basis for interfering with the school fees award as respondent conceded that there was an error.  On that basis the appeal partially succeeds.

The matter be and is hereby remitted to the arbitrator to calculate the correct amount of school fees appellant is entitled to.  Thereafter the arbitral award will be amended accordingly.

Gill, Godlonton & Gerrans, respondent’s legal practitioners