CMED (Pvt) Ltd v Davison Mhaka

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/277/2016
HARARE, 15 MARCH 2016
CASE NO. LC/H/277/2016
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/277/2016

HARARE, 15 MARCH 2016  	  		         	CASE NO. LC/H/636/15

AND 6 MAY 2016

In the matter between:-

CMED (PVT) LTD							Appellant

And

DAVISON MHAKA							Respondent

Before Honourable P. Muzofa, Judge

For Appellant		A Masango (Legal Practitioner)

For Respondent		B Chakanyuka (Legal Practitioner)

MUZOFA, J:

The respondent was the Managing Director of the appellant company until 21 August 2014 when he was suspended from duty.  The issue before the court relates to a pay increase that was awarded but not paid to respondent before his suspension.

The respondent referred the complaint to a Labour Officer and subsequently the matter went before an arbitrator.

The arbitrator ordered the appellant to pay respondent the salary increment from the 1st of April 2013 to 21 August 2014.

The appellant dissatisfied by the outcome noted an appeal to this court.

The appellant relied on three grounds of appeal before this court.

That there was no evidence to support the order by the arbitrator to award the interim salary increment.

That the Honourable Arbitrator grossly misdirected himself on the facts which misdirection amounts to a question of law by making a finding that the board had increased the respondent salary by 12% yet there was no evidence to that effect.

The Honourable Arbitrator grossly misdirected himself which misdirection amounts to a question of law by finding that the Ministry does not determine the salary levels and increment of designated posts yet `this is the legal position.

The respondent raised a preliminary point that the grounds of appeal donot raise questions of law therefore improperly before the Court.

What constitutes a question of law is now settled.  It includes what the true rule of law is and what is within the province of the judge instead of the jury.  It also includes a gross misdirection on the facts.  See generally Muzuva v United Bottles (Pvt) Ltd 1994 (1) ZLR 217.

Where a preliminary point such as this one before the court is raised, the Courts role is to assess whether the issue raised is a question of law or not, in the event that the issue for determination is a factual one the court has to consider whether there was a gross misdirection on the facts to amount to a question of law.

The first and second grounds of appeal in my view raise one issue.  The issue for determination is whether there was evidence before the arbitrator that the appellant had approved an interim salary increment of 12%.

Clearly the issue for determination raise questions of fact.  In view of the evidence placed before the arbitrator there was a gross misdirection.

There was clear evidence that appellant awarded management which includes respondent a 25% increment as shown in the Joint Human Resources and Audit & Finance meeting (the Board) minutes of 30 September 2013.  Item 3 of the minutes clarified respondent’s entitlement.

In my view the appellant’s submission before the arbitrator that the award was for management levels 1 – 5 could not be tenable.  The Chairman actually reiterated that the increment had two phases.  Phase one was a 20% basic pay rise for the General Manager Northern Division with a knock on effect on the Managing Director’s basic salary in order to maintain the 15% differential between the two grades.

The 25% was as per Board resolution.

There was authentic evidence that a salary increment was not only proposed but was awarded by the appellant.

The second consideration is whether the 12% increment claimed was supported by evidence.  Respondent did not produce any document to prove that the 25% increment was later reduced to 12%.

Appellant denied that there was an agreement to increase the respondent’s salary by 12% since it would not match the alleged 15% salary gap.

It is trite that he who alleges must prove his case.  See Butler and Finsen, Arbitration in South Africa, Law and Practice at page 248.

In casu it was for the respondent to prove that he was awarded a salary increment of 12%.  The documents placed before the arbitrator proved an increment of 25%.  These did not support his claim.

There was a gross misdirection on the facts. The two grounds of appeal would be properly before the court and merited.

The last ground of appeal is whether the Ministry determines the salary levels and increment of designated posts and this was a factual finding.

There was no misdirection on this aspect.  The respondent’s employer was the appellant.  The contract of employment was signed between the appellant and the respondent.  That contract clearly stated that salary reviews were determined by the Board.

Nothing in the contract refer to the legal position as set out in the ground of appeal.  The appellant did not refer the arbitrator to any law that supported its assertion before the arbitrator.

To that extent there was no gross misdirection by the arbitrator.  The ground of appeal being improperly before the court should be struck off.

I have addressed the merits of the case in determining whether the grounds of appeal raise questions of law or not.  From the foregoing the appeal is merited.

Accordingly the following order is made.

The appeal be and is hereby upheld.

The arbitration award is set aside and substituted by the following

The claimant’s claim be and is hereby dismissed.

Musunga & Associates, appellant’s legal practitioners

Chakanyuka & Associates, respondent’s legal practitioners