Denford N Musarirri v Beach Consultancy

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/109/16
HELD AT HARARE 17 MARCH 2015
CASE NO
JUDGMENT NO LC/H/109/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/109/16

HELD AT HARARE 17 MARCH 2015				CASE NO LC/H/APP/618/14

& 4 MARCH 2016

In the matter between:

DENFORD N MUSARIRI			Appellant

And

BEACH CONSULTANCY			Respondent

Before The Honourable L Kudya, Judge

For Appellant			L T Musekiwa (Legal Practitioner)

For Respondent		T M Manjonjo (Legal Practitioner)

KUDYA, J:

This matter has a sad history of dragging back and forth since 2014 with the parties engaged in a series of applications and counter applications but the merits of the matter not being dealt with.

Finally on 17 March 2015 the parties agreed that they had haggled over the matter for long enough and now wanted finality of the matter on the merits.  This led to the parties submitting on the merits of the appeal at employee’s instance which is the main matter on the case.  Judgment was reserved from 23 March 2015 a date which parties agreed they would have furnished the court with the full arbitral record since the record which was available then omitted important points of what had happened at arbitration and a complete record was necessary for the conclusion of the instant appeal.

The full record was not forthcoming until 28 July 2014 when the arbitrator finally sent the full arbitral record.  It is the arbitral award from the arbitral record which forms the subject of this appeal.  This judgment therefore only addresses the merits of the main appeal.

The background of the matter is that the employee who was employed as a driver by the respondent employer had occasion in 2012 to be transferred from bus driving duties to doing rump duties at the respondent’s rump yard.  Just before the transfer the employee and the employer had engaged with a view to working out a retrenchment package for the employee.  The employees intended exit was birthed by the employer’s action of asking the employee together with 6 other drivers to park the buses which they used to drive.  Employer had indicated that it was no longer viable for it to let the drivers continue with the driving duties.  It would rather have them reassigned within the organisation.  However before the retrenchment discussions could bear fruit the reassignment which irked the appellant employee took place.

Aggrieved by the transfer the employee approached a labour officer and ended up at arbitrator where the arbitrator was called upon to decide on the following:

“1.	whether or not the procedure to abolish the former jobs was within the boundaries of the law

2.	whether or not the respondent committed an unfair labour practice

3.	whether or not the variation of the contract was lawful

4.	to determine the appropriate remedy.”

The arbitrator ruled in his terse award of 5 February 2014 that

“--- employer complied with the provisions of the Act and that the transfer was lawful and also that there was no repudiation of the employment contract by the respondent.  The claim is accordingly dismissed.”

The dismissal of the claim drove the employee to file this appeal which is the subject of this judgment.

The appeal grounds informing the appeal were cited as:

The tribunal has misdirected itself on the law by failing to consider points in limine.

The arbitrator erred in disregarding the existence of mutual termination agreement between the parties

The tribunal erred in its approach of the matter and determined the dispute on hear-say evidence.

The arbitrator did not give regard to the Code of Conduct which expressly provides demotion as a misconduct penalty.

The arbitrator erred in his finding to give the employer a no plea for negotiating in bad faith.

The arbitral tribunal was biased in disposing of the matter.

In response to the appeal the respondent employer maintained that:

The arbitrator did not err in his consideration of the matter.  There was no misdirection at all in the manner in which the arbitrator handled the matter.

There is no appeal on points of law in this matter.

The appellant is raising issue with factual findings made by the arbitrator.  In any event there was no mutual termination that ever took place.

There was no demotion that took place as alleged or at all.

This ground does not constitute an unfair labour practice and in any event is denied.

There is no basis for imputing bias on the part of the arbitrator.

By refusing to provide work at his new work station the appellant repudiated his

contract and ought to be dismissed from work, disciplined or not paid for work not done.  In the circumstances the respondent will pray that the appeal be dismissed with costs on a higher scale.

A reading of the appeal record, the oral submissions and the heads of argument filed on the matter by both parties will show that the parties cited to a great extent various case authorities on the various legal constructs that they relied on.  These are apparent on the face of the submissions filed of record and this court will not endeavour to regurgitate them as what they raise is the settled legal position.

The only critical point in this appeal is whether it can be said that on the face of all these authorities and facts of the matter there is an appeal calling for this court’s upsetting of the arbitral award.  Before dealing with each of the appeal grounds it is worth noting the following facts:

The transfer came about at a time when the parties were negotiating an exit package.  This is borne out by submissions made by both parties at arbitration.  Such discussions had however not been concluded.

Appellant’s transfer from Grade B2 to B4 was indeed a change from his original position even if the salaries and other conditions were to remain the same.  The documents tendered by appellant at arbitration demonstrate clearly that driver duties and rump site duties were clearly distinct.

Constructive dismissal was not one of the terms of reference at arbitration so could not be ruled on by the arbitrator as it was not properly before him.

Having set out the common cause facts the court needs to turn now to each of the

appeal grounds and decide on them.

By virtue of the response to one of the grounds stating that the appeal is bad at law for want of appeal grounds, the court will conclude on that ground first before dealing with the rest.

Ground 1

The appellant refers to points in limine which he says were not decided but a reading of the submissions made at arbitration does not support that.  The court thereof has no good basis to upset the award or account of this ground.  It should fail.

Ground 2 and 3

These are the grounds where the appellant argued that the arbitrator erred by disregarding existence of mutual termination and determined the matter on the basis of hearsay evidence.  A reading of these grounds technically speaking refer to factual findings by the arbitrator.   There indeed is no allegation of gross misdirection on that aspect to found a point of law.  To that extent if the court views the matter from the angle of the argument advanced by the respondent on the point of law debate the court indeed agrees that no point of law arises from the 2 grounds.

Even if the court were to indulge the appellant and accept that technically the 2 grounds raise points of law the said grounds do not find support from the record.  It is note worthy that as stated in the common cause facts above there was negotiation and not an agreement on termination.  The arbitrator can therefore not be faulted to find as he did on this point.  A reading of the full arbitral record does not anywhere in it show where the allegation of hearsay evidence is supported.  These 2 grounds therefore lacking in merit should fail.

Ground 4

That the award is so terse and that it is open to a variety of interpretations is without doubt.   What however is problematic with the appeal is that it is equally void for vagueness especially if one notes this appeal ground.  The issue of demotion as a misconduct penalty is just thrown into the grounds without sufficient clarity as to what it means or its relevance.

The court can only surmise that appellant wanted to argue that his transfer was akin to a demotion and a demotion being a penalty for misconduct per the Code was ill placed as there was no misconduct charge and hearing done on that.  This is only the court’s conjecture and it does not advance the appeal at all.  This ground also lacking in merit should fail.

Ground 5

This is linked to grounds 2 and 3 above and the sentiments echoed in those grounds apply here with equal force.  They thus deserve no repetition.  This ground therefore fails on that account too.

Ground 6

As correctly observed by the respondent bold allegations of bias cannot avail the appellant unless properly substantiated.  Besides, bias is an attack on the procedural aspect of the case and invariably is not taken on appeal.  A reading of the record at arbitration does not in any way show the bias so alleged.  All it shows is that arbitrator gave a terse award.  This ground being without merit too should also fail.  In the ultimate all appeal grounds being without merit should fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirely it be and is hereby dismissed.

Each party to bear own costs.

Musekiwa & Associates, appellant’s legal practitioners

Gonese Attorneys, respondent’s legal practitioners