C. Gurupira & 7 Others V CITY OF Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/635/2014
HARARE, 11 & 26 SEPTEMBER 2014
CASE NO. LC/H/635/2014
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/635/2014

HARARE, 11 & 26 SEPTEMBER 2014		         CASE NO. LC/APP/H/47/14

XREF.LC/H/903/12

In the matter between:-

C. GURUPIRA & 7 OTHERS				Applicants

And

CITY OF HARARE						Respondent

Before Honourable L. Kudya, Judge

For Applicants		-	S. Mushonga (Legal Practitioner)

For Respondent		-	C. Kwaramba (Legal Practitioner)

KUDYA J:

This is an application for leave to appeal to the Supreme Court against a judgment of this court which set aside paragraphs 2 to 4 of an arbitral award which had been granted in the applicant employee’s favour.

The background to the matter is that around 2009 when the country faced an acute brain drain due to the then prevailing economic conditions applicant employees were said to have done work in capacities beyond their grades but did not get promoted to the higher grades neither were they paid for the duties they performed in that high capacity.

They took their matter to arbitration where the arbitrator ruled that those who possessed the requisite skills and experience be promoted to the grades in question.  As for the applicants in the instant application the arbitrator made findings to the effect that it had not been demonstrated that they acted in the alleged capacities but he however went ahead and ordered that they be promoted nevertheless or at least that they be paid damages for the periods so worked and not rewarded.

Aggrieved by the award in respect of the instant applicants the respondent employer appealed to this court against the arbitral award on the paragraphs referred to above.  The main contention on the appeal was that the arbitrator had erred in law by making findings of fact which went contrary to his final decision.

The court agreed with the respondent employer that as borne out by the arbitral record indeed the arbitrator had erred at law by making an order which went contrary to his findings of fact on the matter.  The applicant employees upon receipt of this court’s judgment formed the view that the court had erred at law by upsetting the arbitral award notwithstanding the glaring contradictions between the arbitrator’s findings of fact and his ultimate decision.  They consequently filed the instant application for leave where they are seeking to be allowed to approach the Supreme Court on the basis that this court erred at law in making the decision it made on this case.

The basic grounds for seeking leave are that the court erred to set aside the arbitral record because there was on the record evidence that indeed applicants had acted in the higher grades and that the engineers had recommended that they be promoted to higher grades.  To that extent it was the applicants’ contention that issues of failing trade test etc were immaterial to the matter and the court should have been satisfied that notwithstanding contradictory findings of fact by arbitrator evidence on the ground confirmed that indeed the applicants had given service in the higher grades and had to be rewarded in the manner spelt out by the arbitral award.

In response to the application the respondent employer maintained that the application for leave was ill founded taking into account the fact that the findings of this court were indeed supported by the arbitral record hence the court’s order was unassailable.  It noted in particular that the findings of fact that no cogent evidence existed to justify promotions or increased salary payments was not a finding made by this court but rather by the arbitrator.  So it could not be argued that this court misdirected itself to make such a finding as it was not its finding.

Further to that the respondent argued that the trade testing efforts put in by the respondent were clear testimony of its intention to have the applicants get what was appropriately due to them but because they fell below the expectations as they thus could not be rewarded for the sake of it.

Respondent noted in particular that for those who met the required criteria the respondent had gone ahead and accepted that implementation of the award in respect of the deserving employees be carried out.  It argued also that even if it were taken for a fact that there were recommendations in terms of the respondent’s policies these remained as such for what they were.  They could not be elevated to an order of court to compel advancement into higher grades or payments of damages or allowances for the grades allegedly acted in.

The law relating to such applications deserves no re-statement.  It basically hinges on whether there is a clear point of law advanced by the applicant warranting the involvement of the superior court.  In the same breadth the merits of the appeal need also be canvassed and to a lesser extent the balance of convenience issue should also be addressed.  The cumulative effect of these components is what has to rule the day.  Each of the facets will be addressed below:

Point of law

As to what a point of law is now settled see Muzuva v Delta Beverages 1994 (1) ZLR 329.  Applying the principles in that case to facts of the instant case the applicant says that the recommendation by Chifamba and log sheets showing that applicants acted in higher capacities should have made the court to confirm the arbitral award.

It is however worth noting that the recommendation and the log sheets cannot be taken in isolation with the tests which the applicants were made to undergo which they failed.  It is therefore the court’s view that even though record can be said to be having the evidence of the recommendation and the log sheets these flew in the face of the failure of the tests by the applicants hence the arbitrator’s conclusion that notwithstanding that, the applicants had to be promoted was misplaced.  To this extent the court is satisfied that there is no point of law in this scenario which the Supreme Court may be called upon to deal with hence the application cannot stand.

Merits of appeal

This is intricately linked with the point of law debate. It is clear that whilst there were recommendations etc on record the applicants failed to live up to the test of the job hence their not promotion cannot be faulted.  The court fails to see how a higher court can argue otherwise in the face of all the evidence on record.  It is clear that prospect of appeal are slim and grant of leave would thus be of academic importance only.

Balance of Convenience

A reading of this court’s record shows that all the issues which applicants are taking issue with were tackled by the court. In that  respect no meaningful purpose would be served by the grant of leave in such a matter.  In view of the conclusion that the merits are slim and no clear appealable point of law has been made out, court is satisfied that the application for leave should fail

IT IS ORDERED THAT

Application for leave to appeal to Supreme Court being without merit it be and is hereby dismissed with costs.

MUSHONGA MUTSVAIRO & ASSOCIATES, Applicant’s legal practitioners

MBIDZO MUCHADEHAMA & MAKONI, Respondent’s legal practitioners