Gold Driven Tobacco v Kudakwashe Murandu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/512/2014
HARARE, 10 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/512/2014

HARARE, 10 JULY 2014 &				    CASE NO LC/H/44/2013

15 AUGUST 2014

In the matter between:

GOLD DRIVEN TOBACCO						APPELLANT

Versus

KUDAKWASHE MURANDU						RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Appellant		K Mupopa	(Personal Manager)

The Respondent in Person

KUDYA J:

This is an appeal by the appellant employer against the decision of the Grievance Disciplinary Committee for the Tobacco Industry (“GDC”) where it ruled in the respondent’s employee’s favour that he had been deprived of his thirty-four leave days which he had accrued during his employment with the appellant company.

The brief facts of the case are that the respondent who was on “fixed term contract of employment with the appellant approached the GDC after he had failed to recover value for the days which he says he had accrued at the respondent’s. Based on the evidence presented before it both oral and written the GDC ruled that indeed the employee had made out a good case for payment for the days he had accrued when he was still in the appellant’s employment. To that end the GDC ordered the appellant to pay the respondent for those days. This did not go down well with the appellant thus prompting it to appeal to the Labour Court in the instant matter.

The grounds of appeal are couched in a single line reading “The disciplinary committee erred in the calculation of vacation leave days due to the respondent”. It went on to attach a document showing why it was of the view that the respondent was not entitled to the leave benefit in question. See page 13 of the record of proceedings.

On the other hand the respondent does not seem to have filed a response with the registrar as the record is silent on that. The court was however prepared to condone that omission taking into account the fact that it was dealing with self-actors who are not well schooled in the legal niceties of pleadings.

His response as gleaned from his oral submissions on the set down date showed that he was challenging the appeal and insisting that he was owed the thirty-four days which the appellant was ordered by the GDC to pay him. His reason for arguing as such is that in his view it was improper for the respondent to have deducted his vacation days on account of an extended shut down which was not of his making as well as on account of days which the appellant had never given to the respondent in excess taking into account that he had utilised some of the days when he had sought time off for exams and also other vacation leave which he was granted in the course of his employ. In the result he prayed that the appeal be dismissed and that the GDC’s decision be made to stand.

The law relating to appeals of this nature is quite clear. See case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC). Essentially an appeal tribunal is not empowered to substitute its discretion for that of the lower tribunal unless it can be demonstrated that the exercise of that discretion was done in grossly unreasonable circumstances or actuated by bias or malice.

Applying the legal principles in the quoted case to the facts of the instant case what the court is being called upon is to determine whether indeed the calculations made by the committee can be termed grossly unreasonable in the face of the facts of the matter.

It is also pertinent to observe that a reading of the notice of appeal shows that the appeal ground lack sufficient f clarity but as earlier stated the court was prepared to condone the ill-citation of the ground so that the matter could be concluded on the merits and because the parties to the matter were self-actors not schooled in legal niceties of drafting pleadings.

A reading of the appeal’s committee judgment makes specific reference as to how it came up with the thirty-four days which it ruled were due to the respondent. On the other hand the appellant argues that the appeals committee erred by not appreciating the fact that the law allowed for the vacation leave days of an employee to be used up during shut down.

A reading of the judgment and the documents tendered at the appeals hearing which are also now part of the record do not speak to the alleged misdirection. What is apparent is that on the facts presented before it by the parties the GDC committee believed the respondent as opposed to the appellant and its reasons are spelt out clearly in the judgment.

The court therefore fails to appreciate the misdirection which the appellant alleges is attributable to the appeals body. In the result the court is not persuaded that a good case for appeal has been made by the appellant. The appeal should accordingly fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed.

The decision of the GDC is to stand.

Each party to bear own costs.