Avondale Spar Express v George Peters

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/130/13
HELD AT HARARE 5th February, 2013
CASE NO LC/H/158/12
In the matter between:-
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/130/13

HELD AT HARARE 5th February, 2013	        CASE NO LC/H/158/12

In the matter between:-

AVONDALE SPAR EXPRESS			Appellant

And

GEORGE PETERS 				Respondent

Before Honourable G Mhuri, Senior President

For Appellant: Mr A. Mugandiwa (Legal Practitioner)

For Respondent: Ms T. Dongo (Legal Practitioner)

MHURI G.

Respondent was in Appellant’s employ as an Assistant General Manager reporting to the General Manager.

According to a complaint letter dated the 4th November 2011, by the General Manager addressed to the Human Resources, (record page 31) on the 3rd November 2011, the General Manager instructed Blessing Muchechemera a Human Resource Officer to inform all Managers through e-mail that all management meals, coffees had been banned unless through the canteen.

A similar instruction was given to all counter hands by the General Manager.

It was on the 4th November 2011 Respondent came to know about this instruction from a counter hand when he tried to get some coffee. It was after Respondent got the coffee that he was charged with and found guilty of an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of contact in that he had wilfully disregarded an instruction by the General Manager ordering that all management meals be stopped.

Aggrieved by the decision, Respondent referred the matter to a Labour Officer for conciliation which conciliation failed. The matter was then referred to Arbitration. The Arbitrator awarded in favour of Respondent which award is the subject of this appeal.

From the evidence submitted before him, in the form oral submissions by the General Manager that he did not personally inform Respondent of the instruction he had issued (record page 34), an e-mail dated 4th November 2011 mailed to Respondent at 01:19:53 pm sent by Blessing in which he apologized for the mix up in the e-mail addresses, the Arbitrator made a factual finding that at the time Respondent asked for and got the coffee from the counter hand, he had not received the instruction. Respondent could not therefore obey or disobey a non-existent instruction.

Appellant’s grounds of appeal are as stated on pages 2 and 3 of the record. I reproduce them hereunder:-

Our appeal is based on the following submissions which we believe should be considered in revisiting the whole decision:-

We are not content that the arbitrator was impartial in handling this matter. This is because of the fact that we had written a letter to him asking for the case to be heard by another arbitrator owing to our inability to pay the arbitration fees (copy of letter attached as annex 1). However the arbitrator went ahead with the case following the applicant’s pledge to honour even our obligations (copy attached as annex 2). We believe he should have recused himself from the case and refer it back to the Ministry of Labour.

This error of judgment was prejudicial to our case as shown by the award given (annex 3).

The honourable arbitrator omitted an admission by George Peters that despite missing the e-mail which carried the instruction, he nonetheless got it verbally through the counter hand who served him the coffee. The attached report by the counter hand shows that Peters got served the coffee despite the reluctance of the counter hand. In this case the arbitrator only took issue with the e-mail mix up while negating the above fact. This has proven to be fatal to our case.

The arbitrator further alleges that the respondent was charged and dismissed from a none existent misconduct yet facts are bare that an offence was indeed committed and was properly charged. How an open admission cannot be considered as hard facts beats all logic and needs redressing.

We are therefore puzzled as to the above errors which fatally devalued our side of argument.

Shockingly, the arbitration hearing was conducted on Friday 2 March 2012 at 12.00 hrs and by Monday 5 March 2012, mid morning the arbitration award was being flagged in our faces by respondent. This record time to come out with such a crucial judgment is mind boggling.

PRAYER

It is our prayer that with the above, the court will not put aside the Award and consider facts to come up with a different decision. We believe that the Arbitrator made some fatal omissions which cost us in terms of the value and worthiness of case.

We hope you will see reason and put aside the Arbitration Award and reconsider the above to give a justifiable decision which is commensurate with the seriousness of the case.

In his response to the appeal, Respondent raised a point in limine arguing that the appeal does not raise a question of law to be in compliance with Section 98(10) of the Labour Act [CAP 28:01] The Act.

Appellant’s argument was that the Arbitrator’s finding that no misconduct had been committed, was so outrageous in its defiance of common sense and logic and is indeed a serious misdirection on the facts amounting to a question of law.

It is a trite position of the law that appeals to this Court against arbitral awards are to be on a question of law. See Section 98(10) of the Act. It is also trite that a gross misdirection on the facts amounts to a misdirection on the law. See the case of

NATIONAL FOODS LIMITED

VS

STEWARD MUGADZA SC 105/95

wherein it was stated that;

“It is true that this Court only has jurisdiction to hear an appeal from the Tribunal on a point of law ........ But clearly if there is a serious misdirection on the facts that amounts to a misdirection in law. The giving of reasons that are bad in law constitutes a failure to hear and determine according to law as per Ebrahim J.A.”

Appellant’s grounds of appeal leave a lot to be desired. They do not raise any question of law. There is no allegation that the Arbitrator seriously misdirected himself on the facts as to amount to a misdirection on the law. They do not show how the Arbitrator’s award is so outrageous in its defiance of logic as to amount to a serious misdirection on the law.

Support is found in the case of:

FLORENCE CHINYANGE

VS

JAGGERS WHOLESALERS SC 24/2004

in which Gwaunza J.A. under scored the need for a litigant not only to allege but also show that the Court aquo misdirected itself on a point of law. In Appellant’s grounds there is not even an allegation to that effect.

Even if Appellant had so alleged and shown, could it be said that the Arbitrator’s findings were so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision?

See:-

RESERVE BANK OF ZIMBABWE

VS

GRANGER AND ANOTHER SC 34/2001

Certainly not in my view, more so considering that the General Manager did not communicate directly with Respondent who was his immediate subordinate. The instruction communicated via the Human Resources Officer by e-mail to Respondent did not reach him until after the alleged commission of the act of misconduct. The counter hand from whom Respondent came to know about the instruction was a very junior employee to Respondent and who could not state from whom she got the instruction for Respondent to believe her.

With this evidence before him it cannot be said that the Arbitrator misinterpreted the facts as to amount to a question of law as submitted by Appellant. Neither can it be said that the Arbitrator failed to appreciate the facts at all or made findings that are contrary to the evidence presented.

Either way, I find that the arbitral award is not appealable as the grounds do not fall under the ambit of Section 98(10) of the Act. The point in limine is therefore upheld.

Accordingly the appeal is dismissed with costs for non compliance with Section 98(10) of the Act. The award is confirmed in its entirety as there is no legal basis upon which I can amend it as prayed by Respondent.

Wintertons – Appellant Legal Practitioners

Robinson and Makonyere – Respondent’s Legal Practitioners