City of Harare v Elister Chamisa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/362/2014
HARARE, 09 & 20 June 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/362/2014

HARARE, 09 & 20 June 2014			              CASE NO. LC/H/177/13

In the matter between:-

CITY OF HARARE			-		Appellant

And

ELISTER CHAMISA		-		Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		-	Mrs. R. P. Chimhenga (Legal Officer)

For Respondent		-	Mr. T.B. Kativu (Trade Unionist)

MURASI J:

Respondent was employed by the Appellant in the Waste Management Department.  It is alleged that Respondent absented herself from duty and she was brought before a Disciplinary Committee which sanctioned her dismissal.  Respondent approached the Employment Council in 2011 on appeal but this was not resolved.  The matter was referred to arbitration and the Arbitrator found in favour of Respondent.  Appellant is dissatisfied with the decision of the Arbitrator and has appealed to this Court.

Appellant has raised one ground of appeal.  Appellant avers that the Arbitrator erred at law by holding that Respondent was entitled to reinstatement without loss of pay and benefits or to damages in her reinstatement yet the Respondent did not comply with the provisions of the Collective Bargaining Agreement (CBA): Harare Municipal Undertaking (Leave Agreement) (Statutory Instrument 390 of 1992).  In the Heads of Agreement and during oral submissions, Appellant stated that the Respondent had not applied for sick leave and therefore had not complied with the law.  It was submitted on behalf of Appellant that the Arbitrator should have recognized this fact of non-compliance and should have found the Respondent to have been fairly dismissed.

Mr. Kativu on behalf of Respondent, submitted that Appellant’s ground of appeal does not amount to a point of law as provided in section 98 (10) of the Labour Act [Chapter 28:01].  He cited the MUZUVA CASE to buttress his submission.  It was further submitted that the Appellant’s refusal to grant Respondent seek leave was an unfair labour practice.  Mr. Kativu pointed out that Dr. Conic had in fact given a report as to when Respondent was fit to resume duties.

The Court, will first examine whether the ground of appeal is an appeal on a point of law.  Apart from the MUZUVA CASE, the issue of points of law on appeal were also discussed in SABLE CHEMICAL INDUSTRIES LIMITED vs DAVID PETER EASTERBROOK SC 18/10 by GARWE JA.  It is also trite that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law.  The question is, does the ground of appeal raised by the Appellant amount to a point of law?  Appellant is disgruntled by the finding by the Arbitrator that the dismissal was unfair yet in Appellant’s view Respondent did not comply with the provisions of the Regulations.  Would a finding of compliance with a legal provision amount to a point of law?  I think not.  The principle of law that comes into play for the determination by this Court has not been spelt out.  The failure to appreciate or understand a legal principle on the part of the Arbitrator would of necessity amount to a legal issue and therefore appealable if properly pleaded.  As stated by GARWE JA in the SABLE CASE (supra) at page 10 of the cyclostyled judgment:

“For example in a criminal case whether the facts as proved establish were theft or robbery is a question of fact and not law.”

The Learned Judge went further to comment as follows at page 11 of the judgment:

“The words ‘on a question of law’ have been added simply to give the impression that what is being raised is a question of law and yet the real issue in that ground of appeal is whether or not the committee (was) properly constituted, clearly an issue of fact.”

The Court is of the view that the above sentiments equally apply to this case. A determination of whether a law has been complied with is clearly a factual issue.  No matter how it is put forward it does not mutate into being a point of law.  The appeal should fail on that score.

The Court will proceed to determine whether, on the facts, the Arbitrator came to the correct conclusion.  The Arbitrator made the following critical findings:

That a Dr. L.Ncomanzi had diagnosed Respondent to have a back-ache which she suffered at the workplace in 1996 and had recommended light duties.

That in July 2003 a Dr. Conic had written a report that he had attended to the Respondent and he gave the requisite dates.

That Appellant had refused to award Respondent sick leave.

The Court invited Appellant’s representative, Mrs. Chimhenga, to address it on the above findings.  As far as Dr. Comic’s document was concerned, Mrs. Chimhenga stated that she could not confirm whether there was such a document.  The Court informed her that this document was part of the record and had been considered by the Arbitrator.  Mrs. Chimhenga stuck to her submission that Respondent had not complied with the provisions of the Regulations.  It appeared Mrs. Chimhenga had instructions not to make concessions at the hearing.  The Arbitrator had made a finding that Appellant had refused to grant the Respondent sick leave.  In the face of this fact, how would Respondent have complied with the statutory obligation?  Dr. Conic’s report shows that he attended to the Respondent from 16 June 2003 and recommended that she report for duty on 21 July 2003.  It was submitted that after the first refusal to grant sick leave by the Appellant, Respondent could not come back as her health had deteriorated.  This was coupled by the fact that Appellant was indeed aware of Respondent’s ailment as shown by Dr. Ncomanzi’s report.  The Court further invited Mrs. Chimhenga to point out where she believed the Arbitrator had misdirected herself.  There were no submissions forthcoming.

It is trite that an appellate court will interfer with the decision of a lower tribunal if there was gross misdirection that no reasonable person would  arrive at such a decision on the same facts [see generally HAMA vs NRZ 1996 (1) ZLR 664 (SC)].  It is the court’s view that Appellant has been unable to demonstrate that the Arbitrator grossly misdirected herself in arriving at the decision that she did.

In the result, the Court finds that the appeal lacks merit and should be dismissed.

The Court makes the following Order:

The appeal, being devoid of merit is dismissed.

The arbitral award of P. Shawatu dated 4 February 2013 is hereby upheld.

There is no order as to costs.