Cheneso Muvandi v Green Motor Services (Pvt) Ltd

IN THE LABOUR OF ZIMBABWE                   JUDGMENT NO.LC/MC/42/2013

HELD AT MUTARE ON 29 MAY 2013               CASE NO. LC/MC/42/12



In the matter between:-



CHENESO MUVANDI                            - APPELLANT



AND



GREEN MOTOR SERVICES (PVT) LTD        -     RESPONDENT



Before the Honourable L.Kudya, President



For Appellant         -      Mr H. B. R Tanaya (Legal Practitioner)

For Respondent        -       Mr T. A Chiurayi (Legal Practitioner)



KUDYA, L


      This is an appeal and a cross appeal against the arbitrator’s award.

The employee Cheneso had approached the arbitrator after her suspension

by the employer Green Motors had been declared unlawful by a court of law.

The arbitrator ruled that she was entitled to certain benefits which he

awarded her but declined her some for reasons spelt out in the arbitral

award.




                                                                         1
      Aggrieved by the non award or some of the benefits, the employee

appealed to this court against the arbitral award in respect of the benefits

which the arbitrator ruled she was not entitled to or had failed to prove. The

employer challenged the appeal and cross appealed citing the fact that the

arbitrator had erred in holding that the employee was entitled to a salary

increment which she had been awarded by the Managing Director without

the approval of the board.
                                              JUDGMENT NO.LC/MC/42/2013

      The facts of this case are largely common cause.          Appellant was

employed by the Respondent, Green Motors as Finance and Administration

Manager. She was suspended from work on 9 th April 2010 but reinstated on

12th December 2011 without loss of salary and benefits.           She was re-

suspended on 5 December 2011 and discharged on 27th December 2011.



      She appealed against the dismissal and the appeal is still pending. In

that light she restricted her arbitration claim to 5 th June 2009 to 31st

December 2011, the period of suspension when she had been wrongfully

suspended. The issue at arbitration was whether she was entitled to the

various benefits which she claimed she was entitled to.



      The arbitrator ruled that, at law she was entitled to the benefits which

she could not access because she was on suspension.          In particular she

claimed salary for the period of suspension, cash in lieu of leave, education

expenses, motor vehicle benefit and fuel allowance/allocation, cell phone

allowance, club allowance, medical expenses, and bonus. She was awarded

the figures she claims on all the above benefits except the following:-


                                                                             2
1. Salary increment which she claimed was awarded to the other workmates

during her suspension,

2. Bonus payment for which there was no yard stick to measure her

performance whilst on suspension,

3. Education expenses because the arbitrator was not satisfied that it was her

contractual benefit

4. Car and fuel benefit because the benefit was largely for use on execution

of duty so since she executed no duties under suspension she was denied

this benefit

5. Cell phone/mobile phone claim as arbitrator understood it not to mean a

phone allowance.
                                               JUDGMENT NO.LC/MC/42/2013

6. Social Club claim on the basis that she did not tender proof of belonging to

any social club to which employer should have expended money for her to

benefit from that club.



      Arbitrator also accepted that her correct salary was $2000-00 as per

the Managing Director’s letter and not $1200-00 which was provided for in

the original contract of employment.



The Appellant’s grounds of appeal are that:-

1. Arbitrator erred in holding that the Appellant was not entitled to her

educational expenses.

2. Arbitrator erred in holding that Appellant was not entitled to a motor

vehicle allowance




                                                                              3
3. Arbitrator erred in holding that Appellant was not entitled to a cell phone

allowance or company mobile for the period of her unlawful suspension.



      In response to the appeal, the Respondent maintained that the appeal

was out of time and without a proper application for condonation having

been made and granted. There therefore, was no appeal before the court. It

also argued that there is also no appeal before the court because the issues

which are being appealed against are clearly issues of fact. It maintained

that the arbitrator did not err at all on the findings it made on the

educational, motor vehicle and cell phone allowances as they were all correct

factual findings. It therefore moved the court to dismiss the appeal on those

grounds.



         It however lodged its cross appeal to the effect that the arbitrator had

erred at law by holding that Appellant was entitled to the salary increment

which the Managing Director communicated to her but which had not been

approved by the Respondent’s Board. The Appellant in response to the cross

appeal
                                               JUDGMENT NO.LC/MC/42/2013

maintained that there was no misdirection in the arbitrator holding that the

Appellant’s salary was as per the written communication from the Managing

Director who the Board had in its e-mail said would advise Appellant

accordingly.



      Appellant argued that, to that extent the employer could not distance

itself from the Managing Director’s communication as she believed that the


                                                                               4
communication on the new salary scale had been communicated to her after

going through due process. She had no reason to believe that the Managing

Director would give her a contract with conditions with a new salary scale

which the Board was unaware of. She thus maintained that the employer

was thus responsible for its Managing Director’s actions hence had to pay

according to that scale stated by the Managing Director.



       When the hearing commenced the court reasoned with both parties

whether it was just for it to go into the niceties of whether the appeal was in

or out of time and the attendant arguments about when the Appellant

received the award and the e-mails and evidence which were intended to be

led before the court prove that fact of timeliness or otherwise of the appeal.



      Ultimately the parties were persuaded that the interests of justice

dictated that the matter should be dealt with on the merits and the

argument about the timeliness be abandoned. Resultantly, counsel for the

Respondent agreed to drop the point in limine about the timeliness of the

appeal.   This was so notwithstanding the fact that his client had all the

evidence to show the court that the appeal was indeed out of time. In the

result, the issues around condonation, delays etc. were dropped to pave way

for the merits of the matter to be tackled by the court.




                                              JUDGMENT NO.LC/MC/42/2013




                                                                                 5
      Before the merits of the matter could be dealt with the Respondent

raised the point that there is no appeal before the court as it raises factual

points which are not appealable in light of Section 98 (10) of the Labour Act

which.



      After hearing submissions on the point in limine about the law- fact

debate, it was agreed by the parties that they also submit on the merits so

that in the event that the court is persuaded that there is indeed an appeal

before it, the court could then consider those submissions together with the

heads of argument filed by both parties to come up with a proper

determination on the matter.



      What is a point of law as distinguishable from fact has been laid down

in the case of Sable Chemical Industries Ltd vs David Petre Easterbrooke

SC 18/10. Applying these principles to the facts of the instant case, it is clear

that the legal issue which was before the arbitrator was whether an

employee is entitled to benefits which she had failed to access due to the fact

that she was on suspension. As clearly stated by both parties the law is clear

that if the suspension is declared unlawful the employee is entitled to his/her

employment benefits. The only question which then therefore remains is

what benefits.



      It is clear from a reading of the arbitral award that the arbitrator

clearly appreciated that settled legal principle hence his citation of the cases

of F. M. L vs Muzivi S/C 9/ 07 and others which are critical on that note.

After that, he then went further to look at the factual content of the claimable


                                                                               6
benefits. It is these benefits which he then decided upon individually based

on the facts surrounding each benefit in question.



      It is agreed that as he exercised his mind to that effect he also made

reference to case law which also set out legal principles pertaining to the

points in question. What is however patently clear from that is that at no

point on all the
                                              JUDGMENT NO.LC/MC/42/2013

issues which have been raised by the Appellant in his appeal was the

arbitrator trying to find out what the law says etc. The law was already

settled as has already been stated above that the employee had legal

entitlement to those benefits but do the facts in her case support her receipt

of such.



      It is clear therefore that, there is no point of law which the arbitrator

can be said to have erred on in that respect to warrant this court

interference. In the event even if the last rung of the point of law test being

the gross unreasonableness of a factual finding which can be elevated to a

point of law, such is not sustainable on the facts of the present matter.



       It is clear that there was well reasoned factual basis for the arbitrator

denying the Appellant the benefits which are now the subject of this appeal.

The court therefore has no legal basis for interfering with those findings.

The same sentiments relate to the cross appeal. The decision to accept the

$2000-00 as opposed to the $1200-00 figure salary was also a factual finding

which is not appealable.


                                                                              7
       Even if the court were to apply all the Companies Act provisions which

both counsel sought at length to justify each of their positions the position

still remains the same that, the arbitrator found as a fact that the Managing

Director’s letter informing the Appellant’s new salary was accepted as was

based on the circumstances of the prior communication by the Board that

the Managing Director would tell Appellant the outcome of her request.



       Notwithstanding the above, the fact that the e-mail to the Appellant

stating that salary increases could only be with Board approval came way

later after the Appellant had been advised of her new salary and received it.

In essence, all those issues surrounding the propriety or otherwise of her

salary figure was
                                             JUDGMENT NO.LC/MC/42/2013

factual and hence not appealable as the reasons behind it were sound and

could not be faulted.



       It is therefore clear that there is no merit in the main appeal and the

cross appeal. Both should accordingly fail as they do not meet the standard

of the grounds of appeal required in terms of Section 98 (10) of the Labour

Act.



IT IS THEREFORE ORDERED AS FOLLOWS




                                                                             8
1.The appeal and the cross appeal both being irregular for non- compliance

with the rules of court in that both are not on points of law as required by

law and also both being devoid of merit, they be and are hereby dismissed.

2. Each party is to bear its own costs.




L. KUDYA (MRS) --------------------------

PRESIDENT – LABOUR COURT



Mugadza, Chinzamba & Partners – Appellant’s Legal Practitioners



Coghlan, Welsh and Guest – Respondent’s Legal Practitioners




                                                                             9