Eliatsikwa v Golden Acres Farm

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/744/16
HELD AT HARARE 14 OCTOBER 2016
CASE NO
JUDGMENT NO LC/H/744/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/744/16

HELD AT HARARE 14 OCTOBER 2016			CASE NO LC/H/1145/14

& 18 NOVEMBER 2016

In the matter between:

ELIAS TSIKWA							Appellant

And

GOLDEN ACRES FARM						Respondent

Before The Honourable Muchawa, J

(IN CHAMBERS)

MUCHAWA J:

This is an appeal against an arbitral award which I am proceeding to determine on the record in terms of section 89 (2) (a) (i) of the Labour Act due to non-compliance with Practice Direction 1 of 2014.

The appellant who was employed initially as a general hand, then assigned clerical duties alleged constructive dismissal.  This was alleged to have arisen from his demotion from clerical work to general work.  Whilst performing such general work the respondent’s manager started recording the appellant with his cellphone camera.  The appellant attempted to take the camera from the manager resulting in a scuffle.

A day after these events, on 25 June 2014 appellant lodged a complaint of unfair labour practice and constructive dismissal with the National Employment Council for the Agricultural Industry.

Meanwhile, on 26 June 2014, the respondent charged the appellant with acts or conduct inconsistent with his contract of employment, threatening and riotous behaviour and wilful and deliberate disobedience to a lawful order.  A disciplinary committee was set up to deal with the misconduct. Both workers’ representatives and union representatives did not participate in the hearing as they walked out with the appellant.  The appellant was found guilty as charged and dismissed from employment.

The arbitrator concluded that there were no clear facts submitted to him in support of an unfair labour practice and he dismissed this claim.

The constructive dismissal allegation was found to be frivolous and it too was dismissed.

Disgruntled, the appellant has filed this appeal on these grounds;

“1. That the honourable arbitrator grossly erred by not considering the tendered evidence before him.

2. Despite clear evidence, the honourable arbitrator misdirected his mind.  Hence made a wrong finding and arrived to unreasonable decision. (sic)”

In response, the respondent takes issue with the two grounds of appeal.

It is averred that the first ground of appeal is not predicated on any point of law, is inadequate as it is devoid of pertinent details as to which evidence the arbitrator ignored.

The second ground of appeal is said to be a mere bold accusation which is without merit.

In the case of Chimaiwache v The State SC 18/13, the Supreme Court stated this position;

“What is trite is that a ground of appeal must be clear and specific.  It should not be vague..”

Further the learned authors, Herbstein and van Winsen in “The Civil Practice of the High Court of South Africa, 5 ed, Volume 2 at p 1158 state,

“It has been held that the grounds of appeal … must be clearly and succinctly set out in clear and unambiguous terms so as to enable the court and the respondent to be fully informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal.”

In casu the appellant’s grounds of appeal are woefully inadequate.  Both the court and the respondent are left clueless as to the evidence it is alleged, was not considered.  This puts the respondent in the embarrassing position of failing to properly respond to the appeal.  At best such grounds of appeal are vague and embarrassing.

This is a fatal flaw to the appeal.

Accordingly this appeal is struck off the roll.