Antonater Dengende v Mt Selinda High School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/381/2016
HARARE, 24 FEBRUARY 2016 &
10 JUNE 2016
CASE NO LC/H/343/2015
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/381/2016

HARARE, 24 FEBRUARY 2016 &			                   CASE NO LC/H/343/2015

10 JUNE 2016

In the matter between

ANTONATER DENGENDE						APPELLANT

Versus

MT SELINDA HIGH SCHOOL						RESPONDENT

Before the Honourable B S Chidziva J

For the Appellant	L Uriri (Legal Practitioner)

For the Respondent    T Chivale (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of Honourable Arbitrator N A Matongoreni that was handed down on 7 March 2014. The arbitrator in his findings found that:

The appellant had no legitimate expectation of being re-engaged.

The appellant declined to take the position of a bursar on permanent basis and thus she is dismissed.

The background of this matter is that:

The appellant was employed as a school bursar from 14 January 2014 to 5 January 2015.

On 21 September 2014 she was appointed by UCCZ as a bursar for Chikoore.

The appellant turned down the offer on the grounds that she had a running contract which defined her conditions of service. She stated that she was based at Mt Selinda until expiration.

On 2 October 2014 the UCCZ then withdrew the appellant’s appointment as bursar for Chikoore High School.

On 4 October 2014 the UCCZ then advised the appellant that it will not be renewing their contract as bursar at Mt Selinda when it expires on 14 January 2015.

On 16 March 2016 the appellant then approached the labour Officer alleging unfair labour practice and legitimate expectation of being re-engaged.

The labour officer referred the matter for arbitration after parties had failed to reach an agreement.

The terms of reference that were brought before the arbitrator were as follows:

“To establish whether the employee had legitimate expectation of being re-engaged and the remedy thereof”.

The grounds of appeal before this court are as follows:

The arbitrator did not follow legal procedures requiring a respondent to file a response to the statement of claim and for the claimant to file a replication before an oral learning.

The arbitrator unlawfully allowed a third party (the Responsible Authority) to attend the pre-arbitration meeting and give evidence. It was a serious misdirection on the part of the arbitrator to make a determination on the basis of the evidence of a third party without affording an opportunity to both appellant and the respondent to respond to that evidence.

The arbitrator erred in law in making a finding on a matter that was not before him. The arbitrator made a finding that the appellant was not employed by the respondent, but by the Responsible Authority yet the issue of the employment contract between the appellant and the respondent was common cause, the only question for determination having been whether or not the appellant had a legitimate expectation of being re-engaged.

The arbitrator, having considered irrelevant issues from a third party erred in both law and fact in finding that the appellant had no legitimate expectation of being re-engaged.

The entire arbitral award is so fundamentally flawed in law in that it addresses the wrong issues referred to arbitration. Accordingly, there is no legal basis whatsoever for the arbitral award. The appellant prayed that she should be reinstated without loss of salary and benefits.

The respondent in response submitted to this court that the arbitrator did not err because:

He made a sound analysis of the facts and law and hence there is no reason to set aside the award.

No basis was established by the appellant to ground her claim that she had a legitimate expectation to be re-engaged upon the expiration of her contract of employment on behalf of the employer.

Where one is aggrieved by the procedure used at arbitration one approaches the court on review and not on appeal.

To start with a point in limine has been raised to the effect that Mt Selinda has no locus standi to be the respondent in this case. However the contract of employment dated 14 January 2014 clearly shows that Mt Selinda being represented by the Head and SDC Committee was the employer. The school having been established in terms of the Education Act [Chapter 25:04] is a legal personae and had the capacity to sue and be sued. Thus the respondent in this case is Mount Selinda High School.

The appellant has raised a number of procedural issues against the decision of the arbitrator. Section 92 E of the labour Court Act [Chapter 58:03] states that:

“An appeal in terms of this Act may address the merits of the determination or decision appealed against.”

Procedural issues can be brought before the court on review and not appeal.

The appellant also told the court that it had the legitimate expectation to be re-engaged upon the expiration of her contract of employment. However section 6:1 of her contract of employment states that:

“The employer may terminate your contract of employment by giving three months’ notice of intention to do so.”

Furthermore the appellant turned down an offer for being bursar on permanent basis by Chikoore High School. This school also falls under UCCZ like Mt Selinda. There is nothing on record to support her claim that her contract was going to be renewed. The fact that she attended interviews for being bursar at Chikoore High School shows that she did not have legitimate expectation of being re-engaged by Mt Selinda High School.

It is this court’s view that the arbitrator made a sound analysis of the evidence and facts that were brought before him. This appeal lacks merit and the court therefore orders as follows:

Accordingly it is ordered that:

The appeal be and is hereby dismissed with costs.

The arbitral award by Hon N A Mutongoreni dated 7 March 2015 be and is hereby upheld.

Matsikidze & Mucheche, appellant’s legal practitioners

J Mambara & Partners, respondent’s legal practitioners