Charles Mutuma v Tandamanzi Drilling

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/430/2014
HELD AT HARARE ON 1 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/430/2014

HELD AT HARARE ON 1 JULY 2014 &		  CASE NO LC/H/229/2014

18 JULY 2014

In the matter between:

CHARLES MUTUMA							APPELLANT

Versus

TANDAMANZI DRILLING						RESPONDENT

Before The Honourable L M Murasi	:	Judge

No Appearance for the Appellant

For the Respondent	N Madya  (Legal Practitioner)

MURASI J:

The appellant was in default despite the fact that summons was served on his designated representatives, the Zimbabwe Federation of Trade Unions (“ZFTU”). Respondent’s Counsel implored the court to proceed to hear the matter on the merits. The court granted the request.

The brief facts of the matter are that the appellant was employed by the respondent as a Project Manager. He is alleged to have misused the motor vehicle allocated to him by the respondent. He was charged and found guilty leading to his dismissal. The matter ended up in arbitration and the arbitrator upheld his dismissal. The appellant has appealed to this court.

The respondent raised a point in limine in that the appellant’s grounds of appeal are not in compliance with section 98 (10) of the Labour Act [Cap 28:01] in that they do not raise points of law. The respondent also pointed out that a reading

of the arbitrator’s award shows that the arbitrator ably dealt with the issues before him and his decision cannot be faulted.

The court will proceed to examine the appellant’s grounds of appeal which are as follows:

The arbitrator failed to take note that the claimant was a Project Manager.

The arbitrator failed to consider the claimant’s contract of employment.

Precedent has clearly established what are regarded as points of law in the celebrated Muzuva case and in Sable Chemical Industries Limited v David Peter Easterbrook SC-18-10. “Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter (per GARWE JA in Sable case (supra).”

A reading of the first ground of appeal shows that the appellant states that the arbitrator failed to take note that the claimant was a Project Manager. What point of law is raised by the query? The court finds that no question of law is revealed by this ground of appeal. In any event, as submitted by the respondent, the allegation is not supported by the record. The record shows that the arbitrator’s opening statement reads:

“The claimant was employed by the respondent as a Project Manager …”.

The court finds that this ground of appeal does not raise any point of law and is factually incorrect in stating that the arbitrator did not take into account that the appellant was a Project Manager.

The second ground of appeal also suffers the same fate. It does not bring out the question of law which the court is called upon to determine. Further, the averment that the arbitrator failed to consider the claimant’s contract of employment is not borne out by the arbitral decision.

The arbitrator clearly states as follows:

“The employment contract states expressly that the vehicle is not permitted for any other use outside of the scope of employment”.

The arbitrator therefore referred to the contract in question. The court finds that this ground of appeal, apart from failing to meet the requirements of section 98 (10) of the Act, is clearly without merit.

A further perusal of the arbitral award shows that the appellant was unable to prove that the Managing Director had authorised these excursions using the company motor vehicle. The Managing Director was called and flatly denied ever giving the appellant such authority. The appellant was not in a position at the initial hearing to supply the dates and circumstances under which such authority was granted. Can the arbitrator’s findings be faulted in any way? I think not. It is trite that an appellate court can only interfer with the decision of a lower tribunal where there is evidence that the decision arrived at was grossly unreasonable that a reasonable court properly applying its mind would not have arrived at that decision on the same facts. (See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)).

The court is of the view that the decision of the arbitrator cannot be faulted.

The court finds that the grounds of appeal do not comply with section 98 (10) of the Act as they do not raise points of law. The point in limine must be upheld. Further, a reading of the arbitral award does not show that the arbitrator misdirected himself and his decision cannot be faulted.

The appeal is accordingly dismissed.

The court makes the following order:

The point in limine, being with merit, is accordingly upheld.

The appeal be and is hereby dismissed.

The decision by the arbitrator W T Pasipanodya dismissing the appellant’s claim is hereby upheld.

The appellant to pay costs of suit.

Wintertons, respondent’s legal practitioners