Elson Gumbo v Marange Resources

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/221/14
HELD AT HARARE 24TH SEPTEMBER 2013
CASE NO LC/H/221/14
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/221/14

HELD AT HARARE 24TH SEPTEMBER 2013		CASE NO LC/H/418/13

& 11TH APRIL 2014

In the matter between:-

ELSON GUMBO				Appellant

And

MARANGE RESOURCES			Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr A Chambati (Legal Practitioner)

For Respondent		Mr I Ndudzo (Legal Practitioner)

CHIDZIVA, J:

The appellant is appealing against the arbitral award which was handed down by Honourable T.R. Madzimure on the 20th of May 2013.  It is couched as follows

“In the final analysis therefore, I make the following deposition:

AWARD/APPROPRIATE REMEDY

That claimant’s claim of unfair dismissal is hereby dismissed in its entity for want of merit.

Cost for arbitration shall be borne by both parties equally

I award accordingly.”

The brief background of the matter is that appellant was employed by Canadel Miners as a Plant Shift Foreman on the 1st of July 2010.  This mining company was dissolved in October 2010 whereupon the respondent took over the mine’s officer in terms of section 16 of the Labour Act. It is alleged that in November 2012 the appellant was charged for acts of misconducts.  The allegations were stated in a letter addressed to the appellant by respondent dated 29 November 2012.  In that letter the Chief Security Officer Mr N Mawandi stated that

“The allegations against you are that dating periods extending 29 June 2012 to 2 November 2012 dating the period of employment with Marange Resources (Pvt) Ltd you communicated confidential information related to the company to third parties or alternatively that you got involved in the mining of diamonds in the Marange area without the consent of the employer. The obligations are that this conduct is in violation of your contract of employment and the Declaration signed by you in relation to confidential information.”

The appellant was convicted and dismissed from employment.  He made an appeal which was also dismissed.  He took up the matter with the Labour Officer who referred the matter for arbitration after failing to reach settlement.  The appellant has finally lodged an appeal which is before this court.

The appellant’s grounds of appeal are that

“The arbitrator erred grossly and misdirected herself as to the facts and such

gross misdirection as to the facts amounts to a misdirection as to the law in finding that

The appellant violated clause 11 of his contract of employment (confidentiality clause) by merely mentioning the word “Marange” in a text message to one Gambiza.

The appellant violated clause 9 of his contract of employment (competition clause) by merely receiving a text message on his cell phone from one Timba mentioning some intentions in mining business.”

The appellant therefore prayed that he should be reinstated to his job

and position without loss of salary and benefits from the date of his dismissal.

The respondent in response told the court that

“In limine

The appeal is not premised on a point of law.  there is no scope for one to make an Appeal to the Labour Court against a decision of an arbitrator than on a point of law.  There is no gross misdirection that there is no scope for one to make an appeal on factual issues. On that basis alone, the appeal can be dismissed with costs.

On The Merits

The arbitrator’s decision is sound both in fact and in law.  The Appeal is clearly without merit and must be dismissed with costs on a higher scale.

The arbitration award is the best that could be made in light of the circumstances of the matter.”

What is to be decided in this matter is whether

The Appeal is not premised as required by the law.

Whether the arbitrator’s decision is sound both in fact and law.

The point of law has been defined in the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 as follows

“The phrase  question of law has three distinct, though related, meanings:

A question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit, in accordance with what is considered to be the truth and justice of the matter.

A question as to what the law is An Appeal on a question of law means one which the question for argument and determination is what the true rule of law is on a certain matter.

A question which is within the province of the judge instead of the jury.”

If one is to consider the issues that are being raised by the appellant

they are just factual findings. There is nothing to show that the arbitration was answering anything to do with what the law is.  The issues which the parties are arguing about are the two text messages.

One message from Timba stated as follows

“Am about to convince the finance minister to invest in three plants to Marange.  Do me a paper telling me the cost of landing them and timming of commissioning.  Indicate approximate production output thereafter and estimated monthly revenue…”

The other text message that were found in the appellant’s phone are

“Hello, long time, if you are still supplying Marange with cement be

cautious now ourfinancial position is tricky.  Did you manage to import those trucks.  How is business and family”  This message was send to Gambiza by the appellant on the2 November 2012

“Makadini!  Marange varamba kubhadhara.  We are contemplating legal action.  Regards to family.”  This message was received from Rabwi on 5 July 2012.

The arbitrator in her factual findings with regards to appellant’s text to Gambiza about “Marange” he could not be referring to Marange as a community and he could not have spoken on behalf of the whole community.

The arbitrator also said that in his text message “our financial position is tricky.”

She said that

“Our” to me shows that claimant was referring to none other than the respondent’s company.  This is highly buttressed by the fact that he was indeed part of respondent’s company as an employee that is why he said “our” showing a sense of belonging.”

I am persuaded by the arbitrator’s finding that appellant could not have known personal financial status of the people who stayed in Marange to go to the extent of speaking in a representative manner.

When the appellant made submissions before the arbitrator he stated that he meant Anjine another diamond company operating in Marange.  It is further stated that the appellant submitted that he said so because of a collective job action that had occurred.  However this is not convincing as appellant did not work for Anjine.

The arbitrator thus found that the appellant had breached clauses 11 and 9 of his contract of employment by divulging confidential information to outsiders.

There are however case authorities to show that a decision of a tribunal is appealable on facts if its findings were unreasonable MCNALLY JA corroborated this position in the case of Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at p 256 when he stated that,

“A ruling by the tribunal on damages is a ruling on fact thus not appealable

unless it can be categorised as wholly unreasonable.  This may (but not must) be the situation where the tribunal has misdirected itself on the law as to the criteria to be taken into account, in assessing damages.”

In the case of National Foods v Stewart Mugadza SC 105/95  EBRAHAM JA also said that

“it is true that this court has jurisdiction to hear an appeal from the Tribunal

on a point of law – But clearly if there is a serious misdirection on the facts that amounts to a misdirection in law constitutes a failure to hear and determine according to law.”

The Supreme Court in the case of Chinyanga v Jaggers Wholesalers SC 24/03 also dealt with this issue and stated that

“A serious misdirection on facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

To that end therefore this court finds that:

The appellant did not raise any factual finding that was appealable.

The arbitrator’s findings were sound both in fact and law

Accordingly it is ordered that

The appeal be and is hereby dismissed with costs.

Chambati & Mataka Attorneys, appellant’s legal practitioners

Mutamangira & Associates, respondent’s legal practitioners