City of Harare v E. Munhumumwe

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/228/2013
HELD AT HARARE ON 5th April 2013              CASE NO. LC/ H/107/2012
In the matter between



CITY OF HARARE                         –              Appellant
And

E. MUNHUMUMWE                          –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - R. P. Chimhenga(Legal Officer)
For Respondent     - S. Katsuwa (Unionist)




KUDYA, L.

      The judgment in this matter was meant to have been handed down latest

by the first term of 2013. However when the court sat down to consider the

papers filed of record and the oral submissions by the parties on 29 November

2012 it became apparent that there was need to recall the lawyers representing

both parties to shed light on the issues which exercised the mind of the court

when it was preparing for the judgment. Consequently the court invited the

said lawyers on the 21 March 2013.



      The lawyers appeared on the 5th of April 2013 and clarified issues which

the court needed to be clarified. It is within this background that this judgment

was finally written by the court. The case which was before this court was an
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appeal against the arbitrator’s decision.     The Arbitrator had reinstated the

Respondent on the basis that no meaningful hearing had been conducted in

respect on the Respondent’s matter as he was not heard at all in the disciplinary

hearing. To that extent the arbitrator found that the Respondent had been

unfairly dismissed and thus reinstated him.



      Another issue which was also attended to at the arbitral proceedings is

the question as to who was the Respondent’s employer if he was unhappy about

his dismissal? Who should he have proceeded against in respect of his irregular

dismissal?   The fats of the case are that: Respondent was engaged by the

Appellant in 1994 as a general labourer and rose through the ranks within the

department of water and sanitation services.



      During his service, his department was transferred to ZINWA following a

government directive. Whilst now at ZINWA another government directive was

issued that his department be transferred back to the Respondent. The relevant

government directive was to take effect from 1 February 2009. As at that date

the Respondent had absented him from duty at ZINWA from December 2008 up

to March 2009 when ZINWA charged him with absenteeism.



       It is that absenteeism which then cost the Respondent his job for the

reasons already stated at the beginning of this judgment. Dissatisfied with the

manner in which he had been dismissed the Respondent approached the

Arbitrator who ruled that indeed the dismissal was irregular and reinstated him

to his former position without loss of salary and benefits.




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      What is however noteworthy is the fact that the appeal at arbitration by

the Respondent was against the now Appellant and not ZINWA. The basis for

him noting his appeal in that manner is that he received a long service award

from Appellant in December 2009. He thus maintained that the award together

with the government directive of 01 February 2009 of transfer of employees to

City of Harare, the now Appellant was consistent with the fact that his employer

was the Appellant.

      He therefore argued that his appeal should lie against the now Appellant.

It was his argument that, notwithstanding the fact that it was ZINWA which had

charged him and dismissed him, he was of the view that such was irregular

since as per the government directive and the award he was supposed to have

by then been an employee of the Applicant. The arbitrator agreed with him on

that basis and ruled in his favour. Appellant was aggrieved by the Arbitrator’s

decision hence the instant appeal against the Arbitrator’s award.



      The basic grounds of appeal are that: The arbitrator erred at law by

concluding that the Respondent had been retransferred to the Appellant and

was thus entitled to lay his appeal against the Appellant. Further to that, it

argued that the reliance on the long service award was a misdirection on the

part of the Arbitrator since the award was issued in error.



      The Appellant’s other ground was that, the Arbitrator erred in ruling that

Respondent was its employee yet the disciplinary proceedings were done by

ZINWA and on a ZINWA letterhead. If Respondent had any claim he should have

directed it to ZINWA not the Appellant. Finally, it argued that the arbitral award




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was so outrageous in its defiance of logic that its contents constituted grounds

of appeal on a point of law.



      In response the Respondent maintained that the Arbitrator had exercised

his powers judiciously and rightfully concluded that the Respondent was

Appellant’s employee on the basis of

   1) His contract of employment with it in 1994 which was not varied or

      cancelled.

   2) Long service award issued to him in December 2009.

   3) Government directive which stated that employees who had been

      transferred to ZINWA were now being retransferred to City Of Harare as

      at 01 February 2009.




   The Respondent argued further that, even though the hearing had been

done on a ZINWA letterhead to his recollection the panelists came from the City

of Harare. In any event, it is his argument that, even if ZINWA had charged him

and dismissed him, in view of the re-transfer it meant that the City of Harare in

terms of Section 16 of the Labour Act assumed all the obligations and rights

which ZINWA previously held in relation to the transferred employees. To that

extent, he says he does not appreciate what it is which the Appellant can argue

to have been irregular by him proceeding against it at arbitration.       In the

ultimate, he maintained that the Arbitrator’s decision was therefore unassailable

and should therefore be made to stand.




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       The law as regards appeals against arbitral awards is clear. Section 98 (10)

is instructive in that respect, that such an order shall be appealable on a point of

law only. As to what is a point of law as opposed to fact is clearly set out in the

case of Sable Chemical Industries Private Limited vs David Peter

Easterbrook

SC 18/10.It is clear from the above quoted case that where the factual findings

of the arbitrator are so outrageous as to defy logic such can be construed to be

an error at law justifying interference by the appeal court.



   It is worth noting from the grounds which the Appellant submitted that,

effectively all of them are factual grounds which do not qualify as appellate

grounds against an arbitral award. A reading of the final ground however the

averment that the factual conclusions reached by the Arbitrator were so

outrageous in their defiance of logic that they constitute an error of law. It is

mainly this point which needs to exercise this court’s mind.



   A reading of the arbitral award shows that the reason why the arbitrator was

convinced that the Appellant was the rightful employer of the Respondent was

that

   (a) It had a contract of employment with him. There was no evidence to show

       that he had entered into a new contract with ZINWA at the transfer and

       re-transfer. To that extent his rights and obligations with ZINWA or the

       Appellant still remained the same. The transfers and re-transfers were

       just in the form of what happens when a transfer of an undertaking takes

       place in terms of Section 16 of the Labour Act.




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   (b) A long service award was issued to Respondent way after the transfer

      hence the argument that it was erroneously issued could not be

      sustained. In his view the award demonstrated that the Appellant was

      still the Respondent’s employer.

   (c) The Ministerial directive took effect from 1 February 2009 and

      Respondent was only dismissed in March 2009. To that extent as at 2009

      1 February he was deemed to have been transferred back to the

      Appellant.



   The Appellant argues that, since the Respondent was absent from work at

ZINWA at the time of transfer it meant that he remained a ZINWA employee

pending dismissal. It argued also that the Appellant retained the prerogative to

decide who to retransfer and who not to. Unfortunately at arbitration and even

during the appeal before this court no evidence of how the prerogative was

exercised and evidence showing who exactly was transferred and who was not,

was not tendered.      All that the Appellant maintained was that, it is the

Respondent who said had been re-transferred and hence the duty was on him

to show the court by way of letter or some document that indeed he had been

retransferred to Appellant.



   It is clear that Appellant lost it in this respect because it forgot that factually

Respondent showed the arbitrator that fact by way of the long service award,

his contract of employment and the Ministerial directive. Since it is the Appellant

who was adamant that in its exercise of the re-transfer prerogative it excluded

the Respondent the onus thus fell on it to demonstrate that Respondent was

excluded from the retransfer.


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   In any event Section16 of the Act is clear that unless there is evidence that as

at date of the undertaking the employee had been lawfully dismissed the

employee retains his rights against the old and the new employer alike. In the

instant case, as at date when the Respondent was made to appear before the

disciplinary body there is no evidence that he had been regularly dismissed by

then.



    Even though the order which was finally made in the hearing was made to

have retrospective effect to say that he was dismissed before 1 February 2009,

there is no way he could have been deemed as such before the hearing was

conducted. The fact that ZINWA on its own accord or under the mistaken belief

that since the periods of absenteeism overlapped when Respondent was at

ZINWA and date of directive that did not mean that Respondent lost his

entitlement under the contract of employment with the Appellant .



   It was neither here nor there that ZINWA or the Appellant presided over the

hearing and in terms of what Code.          There was no evidence before the

Arbitrator that the Respondent’s contract terms had changed when he went to

ZINWA. To that extent, the court is convinced that the findings of fact made by

the Arbitrator were not outrageous.



   Even without the long service award, the provisions of Section 16 clearly took

care of the Respondent’s rights if one looks at all the facts. It is clear from the

record and submissions that, as at 01 February 2009 Respondent had not been

dismissed so there was nothing irregular about the Arbitrator finding that the

errors which ZINWA committed during the hearing could be visited upon the


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Appellant who as at 01 February 2009 deemed to have taken back its

employees.



    The arguments on the niceties of who actually sat on the panel and the Code

used, in the court’s view are of no merit in this case. It is clear that the decision

by the Arbitrator on the facts which were presented before him was without

fault. The court is therefore satisfied that the Appellant has failed to make out a

good case for the setting aside of the Arbitral award.          The appeal should

therefore fail.



IT IS THEREFORE ORDERD AS FOLLOWS:

   1) That the appeal being without merit be and is hereby dismissed with

       costs.

   2) The Arbitrator’s decision is accordingly upheld.



L. KUDYA -----------------

President Labour Court




Harare Municipal Workers Union- Respondent’s Representative




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