City of Harare v A Rwaringesu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/248/2016
HARARE, 17 FEBRUARY 2016 &
13 MAY 2016
CASE NO LC/H/490/2015
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/248/2016

HARARE, 17 FEBRUARY 2016 &			            CASE NO LC/H/490/2015

13 MAY 2016

In the matter between

CITY OF HARARE							APPELLANT

Versus

A RWARINGESU							RESPONDENT

Before the Honourable D L Hove J

For the Appellant   Ms A Zeure  (Legal Officer)

For the Respondent   T Shadreck (Legal Intern)

HOVE J:

This is an appeal against an arbitral award.

The respondent, who was employed by the appellant, he was also an official of the workers committee.

The facts which gave rise to the dispute between the parties were mainly common cause and they are briefly that the employer’s policy in terms of Statutory Instrument 135/2012 is that from the age of 55, its employees can go on early retirement. At the age of 60, employees can retire on normal retirement. At the age of 65, employees can go on late retirement.

The employer decided to retire those who had reached the age of 60. These employees were called to a meeting were they were given letters that they were being retired and they were receiving some counselling.

The respondent in this case requested and got authority from his supervisor to attend to workers committee activities. He proceeded to the venue were the employees were receiving retirement letters and counselling. He requested to attend the meeting. The request was denied. But he sought and got permission from the Chamber Secretary of the respondent to educate the workers. He was authorised to meet the employees in another room.

He proceeded to educate the employees. After this only one employee returned to receive the retirement letter and be counselled.

As a result, the employer charged the respondent with an act of misconduct, it being alleged that he had engaged in an act or conduct which was inconsistent with the fulfilment of the express or implied terms of his contract of employment, more specifically that he had disrupted a meeting and taught or educated the employees during working hours.

It was submitted on behalf of the appellant that on the day in question, the respondent approached the Chief Human Capital Officer and instructed her to stop the counselling and retirement of employees. It was submitted that the officer refused to stop the counselling but the respondent instructed the employees using his influence as a workers union member to disperse the meeting.

It was argued that the conduct breached the provisions of section 7 (14) of the Labour Act [Chapter 28:01] (“the Act”).

The section of the Labour Act, it was submitted, protects the employer’s business and outlaws actions that disrupt normal working hours by stopping or preventing interference with the employer’s operations.

The arbitrator found in favour of the respondent and ordered that the respondent be found not guilty of the offence.

The employer was dissatisfied with the arbitral award and noted an appeal to this court.

The grounds of appeal are that:

The honourable arbitrator erred at law in finding that the respondent did not interfere with the appellant’s productive process in contravention of section 7 (4) of the Labour Act [Chapter 28:01] yet the respondent disrupted the appellant’s retirement process.

The arbitrator erred at law in finding that the respondent was charged for his role as a unionist and educating members in an anti-union discrimination when in actual fact he was charged for interfering with the appellant’s retirement process.

The honourable arbitrator erred at law in his ruling that the appellant did not give notice of its intention to retire the employees and was duly bound to consult the union yet there is no such obligation on retirement of employees in terms of the Collective Bargaining Agreement in force.

The decision of the honourable arbitrator is grossly unreasonable and irrational in its defiance of logic to constitute a ground of appeal.

The respondent challenged grounds of appeal number 1 and 2 on the basis that they raised no point of law.

Section 98 (10) of the Labour Act [Chapter 28:01] the Labour Act provides:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

It is thus on the basis of this provision that the respondent challenges the appellant’s grounds of appeal numbers 1 and 2.

Ground number 1 seeks to challenge a factual finding made by the arbitrator that the respondent did not interfere with the appellant’s productive process.

Ground number 2 seeks to challenge the finding made by the arbitrator that the respondent was charged for his role as a union leader.

It is evident that the two grounds are challenging factual conclusions arrived at by the arbitrator. This the appellant cannot do in terms of section 98 (10) of the labour Act.

To enable one to challenge factual conclusions made by the arbitrator in the Labour Court, there must be an allegation that the factual conclusions are so grossly unreasonable or irrational that no sane person would have arrived at such a conclusion. The case of Central African Building Society v Rangise & Ors SC 112-04 the Court distinguished an issue of fact from an issue of law and had the following to say, as to what can properly be regarded as an issue of law:

Question of law is used in three distinct though related senses. First it means a question which the law itself has authoritatively answered to the exclusion of the right of court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second it means a question as to what the law is. 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.”

The issues raised in ground number 1 and 2 seek to challenge only the factual conclusions and not to question what the true rule of law is.

The case of Sable Chemicals Ltd v David Peter Easterbrook SC 18-10 stated that:

“For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection in other words, that the determination was irrational”.

What is therefore being sought to be challenged, the facts can only be challenged where it can be established that the decision was irrational.

There is no allegation of gross irrationality and so the grounds are improperly before the court and must be dismissed.

Ground number three touches on an issue that is immaterial to the dispute between the parties. The respondent was charged with an act of misconduct it being alleged by the appellant that he had interfered with the appellant’s retirement process. The issue of whether or not notice had been given, and also the issue of whether or not the appellant was obliged to give notice or not to give notice was really immaterial to the issue that was before the arbitrator. He may have found that there was no need for notice in terms of the Collective Bargaining Agreement as is argued by the appellant but would that have an effect on the issue that the arbitrator had to decide, i.e. whether or not the respondent had disrupted the appellant’s retirement process? I am not convinced it would. Even if this court were to decide on this issue, it would not impact on the finding by the arbitrator that the respondent was not guilty of the act of misconduct.

In my opinion, the ground of appeal merely seeks to waste the courts time and is not material to the allegations faced by the respondent or the issue that has to be decided by the court.

The last ground of appeal is not a proper ground of appeal. It reads:

“The decision of the Honourable Arbitrator is grossly unreasonable and irrational in its defiance of logic to constitute a ground of appeal.”

It does not say which decision by the arbitrator is grossly unreasonable and irrational in its defiance of logic. It is meaningless and thus it is also improperly before the court. See in this regard the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) where the court stated that:

“A notice of appeal which raises no issue of law for resolution is fatally defective so as to constitute a nullity.”

In casu, the ground of appeal raises no issue of law for resolution and is a nullity. In the case of R v Jack 1990 (2) ZLR 166 held that:

“A notice without meaningful grounds of appeal is not a notice of appeal.”

This is not a meaningful ground of appeal but even if it were the arbitrator’s findings cannot be classified as wholly irrational. He stated on page 19 of the record that:

“The committee itself found that when the claimant addressed the employees, this was by consent of the employer, who provided a facility for the address. The union therefore had been granted the reasonable access to the employees provided for in section 7 (2) of the Labour Act.”

The respondent could thus not have been guilty of disrupting the meeting when the employer agreed that he should have access to the employees and went on further to provide a venue for such a union meeting. The facts in this regard are not disputed. It is accepted that the respondent initially asked to join the meeting but the employer denied him this right but then accepted that he addresses the employees separately and provided the venue and waited for the union meeting to end before the workers could be expected to come back to resume the counselling session and the handing over of the retirement letters. One employee did go back.

The facts do not disclose that the respondent disrupted the proceeding in the manner that the appellant’s legal representative sought to argue. What he did was with the appellant’s consent and they cannot seek to turn around now and seek to allege that the respondent had acted unlawfully.

The court should warn itself that it is not being called upon to re-assess the case and come up with its own conclusion. The court on appeal is merely being called to scrutinize the decision to ensure that it is not grossly irrational in the circumstances. See in this regard the case of Mlambo v Zambezi Groceries (Pvt) Ltd LC/H/41/2014.

There must be shown to the court that the decision was grossly irrational before the court can interfere. In Jona Ndalama v Chief Superintendent Happymore Sigauke & Anor HB 153-11, NDOU J, as he then was stated that:

“There has to be something grossly irregular in the proceedings to warrant such interference. The appellate court must never overlook that the trial officer’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective.”

In casu it has not been shown that there was any irregularity let alone gross irregularity.

The court cannot interfere with the arbitral award.

There are therefore no proper grounds of appeal before the court and even if I am wrong in this regard, the arbitrator’s factual conclusions are not grossly irrational and have not been shown to be so.

In the result, the appeal fails, and

There is no order as to costs.