Forbes Masawi v Scotia Holdings

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/514/16
HELD AT HARARE 18 JULY 2016
CASE NO
JUDGMENT NO LC/H/514/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/514/16

HELD AT HARARE 18 JULY 2016				CASE NO LC/H/669/14

& 9 SEPTEMBER 2016

In the matter between:

FORBES MASAWI				Appellant

And

SCOTIA HOLDINGS				Respondent

Before The Honourable Muchawa, J

For Appellant			Z Mufanebadza (Trade Unionist)

For Respondent		B K Mataruka (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant was initially employed by the respondent as a general hand in October 2001.  He was then transferred to respondent’s Pomona Service Station where he worked as a forecourt attendant until 3 March 2011 when the employment relationship was terminated.

It is the respondent’s case that the appellant voluntarily resigned by tendering a resignation letter.

The appellant, on the other hand, lodged a complaint with the Ministry of Labour and Social Services, on 17 June 2011 alleging an unfair dismissal.  Conciliation was unsuccessful and the matter was referred to arbitration on 5 September 2011.  The arbitrator had to determine whether or not the employee was unfairly dismissed and if so, the appropriate remedy.  The parties filed their written submissions.

What emerged from such submissions was that the issue revolved around establishing whether or not the appellant had authored the letter of resignation in question.  The respondent was tasked to get three handwriting experts to verify whether the signature on the resignation letter was that of the appellant.

A hand writing expert, a Mr Nhari concluded that the appellant had authored the resignation letter of 3 March 2011.  On that basis, the arbitrator concluded the appellant had not been unfairly dismissed.

The appellant is disgruntled and has lodged this appeal on these grounds;

The appellant was unfairly dismissed by the respondent having been summarily dismissed and the employer never offered the chance to present his case. (sic)

Neither was he charged in terms of the commercial sector code of conduct.

The appellant denies resigning from employment.

The appellant denies and dismisses the forensic scientist report because the signatures bearing in the report do not reflect a true signature of the appellant. (sic)

In its notice of response, the respondent raises points in limine which were

addressed in the main.  I now deal with grounds 1, 2 and 3, then ground 4 and finally the points in limine.

Grounds 1, 2, 3 Whether or not the appellant was unfairly dismissed from employment or he resigned

The respondent referred the court to record page 33 where a resignation letter is, which is claimed to have been written by the appellant.  A trend was established from the record showing from page 35 of record the initial contract of employment of 1 October 2001.  There is written notification of the transfer of the appellant on record page 34 of 13 September 2002.  Following the resignation letter there is on record page 32 a letter written by the human resources manager a day later, accepting such resignation.  It was pointed out that it would be out of line for respondent to fail to keep a record of the alleged dismissal, if it had indeed happened.

It was pointed out that the appellant had failed to prove the alleged dismissal.

The appellant’s allegation is that he was verbally dismissed from employment upon  his return from his annual vacation leave upon being accused of being involved in some illicit activities that his colleagues had been caught involved in.

Beyond that allegation, the appellant provides no information as to who verbally dismissed him and what the misconduct issue he was alleged to have committed is.

I find that the appellant failed to discharge the burden of proof as he who alleges must prove.   Astra Industries Ltd v Peter Chamburuka SC 27/12.  The appellant is therefore taken to have resigned through the letter of 3 March 2011 and such an act constitutes a final act of termination by an employee.  Muzengi v Standard Chartered Bank & Anor 2000 (20 ZLR 137 (H).  it is not enough for the appellant to deny resigning from employment.  He should have proved that he has unfairly dismissed, was not charged for a particular offence and was not given an opportunity to be heard.  He failed to do that.  I find no merit in grounds 1, 2 and 3 of appeal.

Ground 4 – Dismissal of the forensic scientist report

The appellant dismissed the forensic scientist’s report on the basis that the signature in the resignation letter is not his.

At the hearing the appellant alleged that the arbitrator did not seek his comments to the expert report.  The letter by the arbitrator to the parties on record page 16 however dispels this.  Such comments were invited on 15 July 2014.  The arbitral award also records as follows;

“I forwarded the report to the parties inviting their comments to the report ad none of the parties challenged the report.”

It was further contended by the appellant that the arbitrator had wrongly relied on one expert report instead of the three he had requested.  The award itself explains that this was occasioned by the scarcity of handwriting experts in the country.

The arbitrator made a factual finding based on the evidence on record and as confirmed by the handwriting expert. The finding was that the letter of resignation contained appellant’s signature and he had voluntarily resigned.  He had therefore not been unfairly dismissed, it was concluded.

By dismissing the expert’s report, the appellant is challenging the factual findings of the arbitrator.

Point in limine

As stated by the respondent, it is incompetent for the appellant to bring on appeal a question of fact.  Section 98 (10) of the Labour Act [Chapter 28:01] provides that an appeal from the arbitrator to the Labour Court shall be on a question of law.  The issues brought on appeal before me do not fall in the categories set out in Muzuva v United Bottlers (Pvt) Ltd 1994 (10 ZLR 217 (S) at 220 D-F.  They do not deal with questions which the law itself has authoritatively answered already nor do they question what the law is on the issues brought on appeal.  Rather, the nub of appellant’s issue is whether or not he signed the resignation letter and whether therefore he resigned or was unfairly dismissed.

The other issues raised relating to the non-soliciting of comments on the expert report by the arbitrator do not appear in the grounds of appeal and it is improper to raise them for the first time in the hearing.  In any event they would be questioning the manner in which the decision was made and not the substantive conclusions of the arbitrator.  Such an allegation would be properly brought by way of review rather than appeal.

In the circumstances, I find no merit in the appeal and dismiss it with costs.

Gill, Godlonton & Gerrans, respondent’s legal practitioners