Cheerz Holdings v Tawanda Mupore & 6 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/270/14
HARARE ON 26th MARCH, 2014
CASE NO. LC/H/103/13
AND 9 TH
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/270/14

HARARE ON 26th MARCH, 2014			                         CASE NO. LC/H/103/13

AND 9TH MAY, 2014

In the matter between

CHEERZ HOLDINGS      					–	Appellant

And

TAWANDA MUPORE & 6 OTHERS			–	Respondents

Before The Honourable E. Muchawa, J.

For Appellant :	Mr K. Mabaudi (Legal Practitioner)

For Respondents:	Mr T. Maramwidze (Union Official)

MUCHAWA, J.

This is an appeal against an arbitral award which found in favour of Respondent’s regarding a claim for alleged non-payment of terminal benefits.

The seven Respondents allege to be former employees of the Appellant  and that each commenced employment at different times and were not paid terminal benefits when such employment ceased under different circumstances.

On the other hand Appellant questions the existence of an employment relationship with fifth Respondent. Other disputed facts relate to when Appellant ceased operations. Whilst Appellant claims this was in 2008, Respondents claim it was in 2012 and that services were terminated from March 2010 to January 2012.

The Arbitrator found that the Respondent’s claims had not prescribed on the basis of the facts presented by the parties and found proved. It was found that their services had been terminated from March 2010 to January 2012. It was further found proved as a fact that there had been no mutual termination of employment nor any resignation as no such record was available in writing.

It is not in dispute however that Appellant has since ceased operations but it was found that the termination of Respondents’ employment had been unlawful.

In the appeal before me the following grounds of appeal are raised.

The Arbitrator erred in holding that the Respondent’s claim had not prescribed in terms of Section 94 of the Labour Act [Cap 28:01] when it was apparent that the matter had prescribed.

The learned Arbitrator misdirected himself in holding that the Respondents are owed terminal benefits in the United States Dollars currency when in fact their salaries in terms of their contracts were in Zimbabwean dollars at the time of employment and termination.

The Arbitrator erred in awarding terminal benefits to the 3rd, 4th, 5th, 6th and 7th Respondents in failing to take into consideration the evidence adduced to the fact that the 3rd and 4th Respondents terminated their own contracts on mutual consent, the 5th was never employed by the Appellant and the 6th and 7th Respondents voluntarily retired.

The learned Arbitrator misdirected himself in holding that the Appellant should pay the Respondents by uplifting the corporate veil for a company which is no longer in existence as it ceased its operations with the death of owner in 2008.

The appeal is opposed. In the response, Respondents avers that the employment contracts were terminated from March 2010 to January 2012 and were therefore not prescribed in February 2012 when a complaint was registered with the Ministry of Labour.

It is a further allegation that Respondent were earning United States dollars as termination of contracts happened way after the introduction of the multi- currency regime. In addition Respondents argue that the Arbitrator was correct in his findings regarding mutual termination of contracts and resignation.

I requested the parties to address me regarding whether the grounds of appeal raise questions of law or fact. This was important as this matter is awash with disputed facts which go to the core of the issues raised. In particular the facts of when the contracts of employment were terminated and how. This has a bearing on the question of prescription and the currency of payment of the terminal benefits. It is also a factual question when the Appellant ceased operations. This too is disputed.

Respondents referred me to the cases of Murawu v Grain Marketing Board Zimbabwe SC 27/09 and Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 for what a question of law is. There a question of law is seen as having three distinct though related meanings:

a question which the law itself was authoritatively answered to the exclusion of the rights of the court to answer the question as it thinks fit, in accordance with what is considered to be the truth and justice of the matter

a question as to what the law is. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter

a question which is within the province of the judge instead of the jury.

I find that the findings of the Arbitrator in casu are based on facts and not matters of law. The grounds of appeal before me though seemingly clothed as grounds on a point of law, are essentially turning on the facts of whether or not 5th Respondent was an employee, when the contracts were terminated, how they were terminated, what was the currency in which the salary was paid and whether or not Appellant is still operational.

I further find that Appellant has only made bare averments of a misdirection based on facts without alleging that such a misdirection on the facts is so unreasonable that no sensible person who applied his mind would have arrived at such a conclusion.

In terms of Section 98(10) of the Labour Act [Cap 28:01] an appeal on an arbitral award to this Court shall be on a question of law. The appeal in casu is not on a question of law but on facts as illustrated above.

As noted in TM Supermarket vs Mangwiro 2004 (1) ZLR 186 at 189 D – F an appeal that is defective and raises grounds of fact is not properly before the Court and should be struck out.

Accordingly it is ordered that this matter be and is hereby struck off the roll.

Zuze Law Chambers, Appellant’s legal practitioners