Biriiri Primary School SDC v Sarah Donono & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/15/2016
MUTARE, 23 MAY 2016 &
CASE NO LC/MC/64/2015
8 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/15/2016

MUTARE, 23 MAY 2016 &				           CASE NO LC/MC/64/2015

8 JULY 2016

In the matter between

BIRIIRI PRIMARY SCHOOL SDC				 APPELLANT

Versus

SARAH DONONO							1ST RESPODENT

And

EVER MUKWENU							2ND RESPONDENT

And

SUSAN UTETE							3RD RESPONDENT

Before the Honourable L M Murasi J

For the Appellant	   Mrs M Mandingwa (Legal Practitioner)

For the Respondents	   Mr A T Nhidza (Trade Unionist)

MURASI J:

This appeal was set down in terms of Rule 19 (3)(a) of the Labour Court Rules, 2006. The appellant, being represented by a legal practitioner had not filed its heads of argument in terms of Rule 19 (1)(a) of the Rules.

Mrs Mandingwa stated that the reason why the heads of argument were not filed was that the matter was being handled by a legal practitioner who is based at Chipinge. This legal practitioner had surrendered the file without filing the heads of arguments. Mrs Mandingwa conceded that she was aware that heads of argument were supposed to be filed within fourteen days of receipt of the Notice of Response from the respondent. She however stated that she could not have complied with the Rules because she did not have the record. Asked by the court as to whether the said legal practitioner had submitted an affidavit explaining why he had not complied with the Rules, she said the legal practitioner had not done so. Mrs Mandingwa implored the court to utilise Rule 26 and use its discretion and allow the appellant opportunity to file the heads of argument.

What is clear is that no cogent explanation was proffered for the non-compliance with the Rules of the court. In casu, it is evident that it is the legal practitioners who are at fault and who should have filed the heads of argument timeously. What is clearly disturbing is the fact that even the service of the Notice of Set Down by the Deputy Sheriff did not awaken the legal practitioners into action. The Notice of Set Down was served on the appellant on 15 April 2016. The set down date was more than a month away. The appellant’s legal practitioners did not do anything. There are certain cases where the sins of a legal practitioner can be visited on the litigant. In K M Auctions (Pvt) Ltd v Samuel & Anor SC 15-12, it was held by GOWORA AJA (as she then was) as follows:

“Negligence or lack of attention to detail on the part of that legal practitioner could not be an explanation that the court should find satisfactory. There is a limit beyond which a litigant cannot escape the results of his lawyer’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the court. The legal practitioner is the representative whom the litigant has chosen himself and there is little reason why in regard to condonation of a failure to comply with a rule of the court the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are.”

The court is of the view that the sentiments expressed by the learned judge apply to this case. No explanation at all was forthcoming from the appellant. In the circumstances the court declined to uplift the bar and proceeded in terms of Rule 19 (3)(b) of the Labour Court Rules.

The parties appeared before the arbitrator who issued an award on 5 June 2015 which ordered the appellant to pay the respondents their terminal benefits and that the parties were to agree on the quantum failure of which either party could approach the arbitrator for quantification. The quantification proceedings were held and the appellant was ordered to pay an amount of US$10 868-00 to each of the respondents. The appellant is dissatisfied with the award and has approached this court for relief.

The appellant’s grounds of appeal can be summarised as follows:

That the arbitrator lacked jurisdiction to deal with the matter;

That the arbitrator erred and misdirected himself at law to give an award in excess of what the respondents had claimed in their claims and therefore the order was legally incompetent and a violation of the law.

That the arbitrator erred and misdirected himself by awarding a grossly unreasonable award that no reasonable tribunal acting competently and carefully would give such an order in the circumstances in that the arbitrator’s conclusions on the facts were wrong which resulted in him arriving at a grossly unreasonable award as it related to the nature of the employment relationship between the parties, duration of the contract, grading of the respondents and their entitlements.

The first ground of appeal deals with the issue of jurisdiction. It is trite that issues of jurisdiction are dealt with on review. It is therefore clear that this is not a ground of appeal and should have been brought by way of review. The appellant does not expound in what manner the arbitrator is alleged to have lacked jurisdiction. The matter was brought to him and he made a ruling in favour of the respondents and informed the parties to negotiate on the issue of quantum failure to which they were supposed to approach him for quantification. The arbitrator was legally clothed with the jurisdiction to preside over the quantification proceedings. The appellant does not cite any law which legally disabled the arbitrator. It is trite that the onus is on the one who alleges to prove on a balance of probabilities that his/her side of the story is the correct one. The appellant has failed to do so in the circumstances. It is my view that the arbitrator was correct in dismissing the preliminary point and that ground of appeal must fail.

The second ground of appeal alleges that the arbitrator erred and misdirected himself by giving an award in excess of what the respondents had claimed. The record shows that the arbitrator summarised the claims by the respondents as follows:

“The applicants submitted a quantum filed of record based on US$274-00 wage scale derived from a Collective Bargaining Agreement signed on the 26th of May 2011. The applicants, claimed three months’ notice pay, outstanding wages as a result of underpayment, gratuity for the ten years, service pay, severance and relocation as terminal benefits.”

It is therefore clear that the applicants placed their claim before the arbitrator. The appellant does not single out which of the claims which were awarded by the arbitrator were not those claimed by the respondents. The record also shows that the arbitrator dealt with each claim, giving reasons for awarding or rejecting the claims. The arbitrator makes the following findings in rejecting some of the respondents’ claims:

“The relocation is unsustainable as the applicants are living in their home area and they are not relocating to anywhere. The claim is therefore invalid.

Gratuity is only payable where it is provided for in the Collective Bargaining Agreements. In casu, the applicants have failed to demonstrate that this is an entitlement to them. I concur with the respondent that gratuity cannot be paid as it is not enshrined in the CBA or Labour Act. Accordingly, the claim for gratuity be and is hereby dismissed.”

This evidently shows that the arbitrator was alive to the issues of what was legally claimable and what was not. The above quoted passage shows that the arbitrator dismissed some of the claims made by the respondents. The record shows that the arbitrator clearly analysed each claim and gave reasons for either awarding it or rejecting it. He was clearly exercising his judicial mind in the process. The question to be answered is whether the awards were grossly unreasonable in the circumstances? The arbitrator stated that he was using a salary scale in the Collective Bargaining Agreement as the yardstick. He was putting the respondents in the grade that was commensurate with their duties and thereby arrive the figures that he did. He did not “pluck” those figures out of the air. Does this show unreasonableness? I think not as the facts and the record clearly militate against making such a finding.

The third ground of appeal makes averments that are similar to those in the second ground of appeal and I am of the view that these have been adequately addressed.

It is trite that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a misdirection to such an extent that a reasonable court would not have arrived at such a decision on the same facts. In Chioza v Siziba SC 4-15 the following was stated:

“The court a quo made factual findings in this regard. The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court. In the absence of such a misdirection (and none has been alleged by the appellant) it is not open to this court on appeal to substitute its own findings of fact for that of the trial court.”

It is my view that the sentiments expressed in the above quoted judgment apply equally to this case. The record shows that the appellant, before the arbitrator, made submissions which tended to query why it was being compelled to make submissions on the quantum when it was disputing that the respondents were employed by it. This was despite the fact that the stage had been passed and there was an arbitral award which had dealt with those issues and therefore was extant. The appellant had not appealed against that decision. The arbitrator in the subsequent hearing was being called upon to hear evidence on quantification. He could not re-visit his earlier decision as he was functus officio. The appellant did itself a disservice by not concentrating on the issues of quantification as reflected in the record.

In the result, the court is of the firm view that the arbitral award cannot be faulted. The appeal is thus without merit and should be dismissed.

The court makes the following order:

The appeal, being devoid of merit, be and is hereby dismissed.

The arbitral award on quantification of Honourable Vhiriri be and is hereby upheld.

Each party to meet its own costs.

Mhungu & Associates, appellant’s legal practitioners