Hwange Colliery Limited V Elitha Sibanda

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Case No. LC/H/1117/24
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Case No. LC/H/1117/24

HWANGE COLLIERY LIMITED

v

ELITHA SIBANDA

LABOUR COURT OF ZIMBABWE CHIVIZHE J

HARARE, 27TH NOVEMBER, 2024 AND 11 JUNE 2025

D. Peneti for the appellant

S. Chamunorwa for the respondent

CHIVIZHE J:

This is appeal against the whole arbitral award of the Ministry of Public Service, Labour and Social Welfare, handed down by Arbitrator P. Kandengwa on 23 September 2024.

THE PARTIES

The appellant is a coal mining company under reconstruction in terms of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] (the “Reconstruction Act”), since October 2018. The respondent is a female adult and former employee of the appellant.

Case No. LC/H/1117/24

FACTUAL BACKGROUND

The respondent was employed by the appellant, as the Chief Surveyor. She was charged with contravening section 2.4(c) of the Hwange Colliery Company Limited Code of Conduct 1993 (The Code). The allegations were that the appellant failed to record the burning coal on the product flow sheet failed to and to ensure that the coal crushed and screened at the appellant’s Plant D was of good quality. It was alleged that as a Chief Surveyor, she ought to have taken steps to ensure the quality of the coal being mined. The respondent pleaded not guilty and a disciplinary hearing was conducted on 20 January 2024, upon which she was found guilty as charged. Consequently, a dismissal penalty was imposed against the respondent.

Disgruntled by the decision of the disciplinary committee, the respondent appealed to the appeals committee. She argued that the disciplinary committee had not proved that prior to the charge, she knew what she was required to do as there were no express or implied terms in her employment contract, requiring her to report burning coal in the product flow sheet. The appeals committee dismissed her appeal.

The respondent further appealed to a labour officer. Conciliation failed and the dispute was referred to Arbitration. The Arbitrator found that the respondent had been wrongly convicted of inefficiency because there was no express policy, practice or law requiring her to report such burning coal on the product flow sheet. The Arbitrator therefore set aside the decision of the disciplinary committee in convicting and dismissing the respondent.

Aggrieved by the decision of the Arbitrator, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

The tribunal a quo grossly misdirected itself in holding that the Respondent had no obligation to report burning coal on the product flow sheet, in circumstances where such comprehensive reporting and innovation was expected of her in terms of her job description and contract of employment.

The tribunal a quo grossly misdirected itself in finding that to the extent that there was no express policy, practice or law for reporting such burning coal on the product flow sheet, the Respondent should not have been found guilty of inefficiency, without taking into account the implied role of accurate reporting intrinsic in the Respondent’s contract and job description.

Without satisfying itself that there was gross misdirection in the decision of the disciplinary authority, the tribunal a quo as an appellate forum grossly misdirected itself by dealing with the appeal a quo as if considering evidence anew.

RELIEF SOUGHT

The appellant seeks the relief that:

The appeal succeeds with costs.

The arbitral award herein dated the 23rd of September 2024, be and is hereby set aside and substituted with an order as follows;

“The appeal be and is hereby dismissed.”

THE APPELLANT’S CASE BEFORE THIS COURT

The appellant challenges the decision of the arbitrator in finding that the respondent had no obligation to report burning coal on the product flow sheet because there were no express terms of the employment contract requiring her to do so. It contends that sitting as an appellate forum, the arbitrator erred at law in assessing the evidence anew and overturning its decision in convicting and dismissing the respondent.

The appellant argues that there was no basis whatsoever for the arbitrator to interfere with the finding that the respondent was guilty of inefficiency and imposing a dismissal penalty against her. It argues that the respondent’s offence went to the root of his contract and as such at law, an employer has the discretion on penalty.

THE RESPONDENT’S OPPOSITION

In her opposing affidavit, the respondent raised two preliminary points, one relating to the validity of the appeal and the other regarding the propriety of the grounds of appeal. With regards to the first preliminary point, the respondent argued that the appeal is fatally defective for the reason that the notice of appeal purports to an appeal against an award by the Ministry of Public Service, Labor and Social Welfare (“the Ministry of Public Service”) when no such entity existed at law, and when such entity did not make a ruling. She made reference to the case of K and G Mining Syndicatev Mugangavari and Ors HB 159-20 in arguing that a government ministry is not a legal entity capable of making an arbitrary award in terms of the Labour Act [Chapter 28:01] (“the Act”).

The respondent also argued that in terms of section 93 of the Act, a dispute is referred to a labour officer and not to a ministry and that arbitrators are themselves appointed in terms

of section 98(6) of the Act. She argued that therefore, there is a clear distinction between an Arbitrator and a Ministry. Moreover, the respondent made reference to the case of Sambaza v AL Shams Global BVI Ltd SC 3-18, wherein an appeal was said to be against the whole Judgment of a certain Judge of the High Court yet it was supposed to against the judgment of the High Court. She stated that in that case, the Court stated that this was improper as there was a clear distinction between a court and a judge. She argued that this case applied with equal force to this appeal. The respondent further argued that the sum effect of failing to properly identify the authority that made the decision sought to be impugned, is that this Court cannot relate to a non-existent adjudicator. She argued that hence, the appeal ought to be struck off the row with punitive costs.

On the second preliminary point, the respondent argued that none of the grounds of appeal disclosed a point of law yet an appeal against an arbitrary award should purely be on a point of law. She contended that all the grounds of appeal are indicating factual issues and not legal issues. She argued that that in the result, the appeal ought to be dismissed with punitive costs.

THE APPELLANT’S RESPONSE TO THE PRELIMINARY OBJECTION

[12  In response to the first preliminary point, the appellant argued that there was nothing amiss in stating that the appeal was against the decision of the Ministry of Public Service. It stated that the arbitral award in question was given under the hand of the Ministry of Public Service, by the respective Arbitrator and that it was stamped by the same Ministry. The appellant argued that an Arbitrator chosen in compulsory arbitration is an employee of the

Ministry of Public Service and that he or she issues an award as an Arbitrator under the hand of such Ministry. It contended that that the situation is different from voluntary arbitration proceedings. It argued that therefore the point had no merit and ought to have been dismissed.

Regarding the second preliminary point, the appellant referred to the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) in demonstrating the distinction between a question of law and question of fact and argued that the appeal raised questions of law. Reference was also made to the case of Zvokusekwa v Bikita Rural District Council SC 44-15 in arguing that a question of law can emanate from a dispute of facts. The appellant submitted that in the first two grounds of appeal, the argument was that the tribunal a quo grossly failed to apply its mind to the evidence of the job description and contract of employment and thus ruling that respondent had no obligation to report such burning coal. It contended that this constituted a question of law without doubt. The appellant further contended that the third ground of appeal equally constituted an even more direct question of law as it dealt with the jurisdictional parameters of an appellate forum. It argued therefore, that the preliminary point to the effect that no questions of law arose from the grounds of appeal was unsustainable.

ISSUES FOR DETERMINATION.

In my view, both the preliminary points do not have merit. I shall proceed to show the basis of this finding.

The issues that are before the court are as follows:

Whether the mentioning of the “Ministry” as responsible for issuing the arbitral award in question renders the notice of appeal fatally defective.

Whether the grounds of appeal raise points of law.

THE LAW

On the first preliminary point, the respondent argued that the appeal was fatally defective for stating that the appeal was against an award by the Ministry of Public Service instead of stating the name of the Arbitrator. The procedure in noting an appeal to the Labour Court from any tribunal or forum is provided for in rule 19 of the Labour Court Rules, 2017 (“the Labour Court Rules”). It provides as follows:

“Appeals and cross appeals

(1) A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following-

complete in three copies a notice of appeal in Form LC 4; and

make three copies of any of the documents referred to in paragraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant-

the record of any charge or allegation of misconduct that was served on the appellant, if any;

the minutes or record of any proceedings or hearing undertaken to inquire into any charge against or allegation of misconduct on the part of the appellant;

a minute or record of any decision, determination, direction or award made at the conclusion of any proceedings or hearing referred to in subparagraph (ii);

the letter of suspension or dismissal from employment, if any,

deposit with the Sheriff an amount to be determined by the Sheriff as security for costs of service of the notice of set down.

file with the Registrar one of the other copies of the notice of appeal, together with-

a copy of the documents, if any, referred to in paragraph (b);

proof of payment of the Sheriff s costs for service of the notice of set down; and

proof (as required by rule 11) that the notice of appeal was served on the respondent;

serve ore copy of the notice of appeal, together with a copy of the documents, if any, referred to in paragraph (b), on the respondent within ten clays of; and

retain a copy of the notice of appeal, and of the documents, if any, referred to in paragraph (b), for himself or herself.”

On the second preliminary point, the respondent contended that all the grounds of appeal were indicating factual issues and not legal issues, yet an appeal against an arbitrary award should solely be on a point of law. An appeal against an arbitral award is provided for in terms of s 98(10) of the Act which provides that:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

In Zimbabwe Educational, Scientific, Social and Cultural Workers Union v Welfare Educational Institutions Employers Association SC 11-2013 at page 5, the Court stated that:

“Consistent with the meaning of s 98(1)(a) of the Act, s 98(10) provides that an appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed to hear and determine a dispute referred to him or her for compulsory arbitration. The fact that s 98(10) of the Act gives a limited right to appeal on a question of law underscores the fact that a right of appeal is a statutory creation and its ambit will depend on the terms of the statute creating it.

If the words “in terms of this Act” as used in s 89(1)(a) of the Act did not mean an appeal noted in the exercise of a right of appeal under the provisions of the Act s 98(10) would have no bearing on the question of the validity of the exercise of the power to hear and determine an appeal from a decision of an arbitrator in compulsory arbitration proceedings. The provisions of s 98(10) become relevant in the determination of the question of the validity of the hearing and determination of the appeal because in terms of the provision there is no right of appeal against a decision of an arbitrator in compulsory arbitration proceedings on a question of fact.”

APPLICATION OF THE LAW TO THE FACTS

Whether the mentioning of the Ministry as responsible for issuing the arbitral award in question renders the notice of appeal fatally defective.

Case No. LC/H/1117/24

Unlike the other Courts’ Rules of procedure, the entire rule 19 of the Labour Court Rules, 2017 does not specify the manner in which the adjudicator or hearing officer in the proceedings a quo ought to be referred to in the introductory part of the notice of appeal. Form LC 4 referred to in rule 19(1)(a) of the Labour Court Rules only gives a guideline regarding the form that an introductory part of an appeal should take. It states that:

“Take notice that the appellant hereby appeals against the attached arbitration award /determination/dismissal award dated the… day of… 20…”

On the basis of rule 19 therefore what is important in formulating a notice of appeal is for the notice appeal to specify that the appeal is against an arbitration award was issued on a particular date by a particular person in his or her capacity as an arbitrator. In casu, the notice of appeal states that:

“Take notice that the appellant hereby appeals against the whole attached arbitral award of the Ministry of Public Service, Labour and Social Welfare given under the hand of Arbitrator P. Kandengwa dated the 23rd of September 2024.” (Underlining for emphasis).

I agree with the respondent’s argument that the “Ministry of Public Service’ is not legal entity capable of making an arbitrary award. However, the reference to the “Ministry of Public Service” does not render the appeal fatally defective. The application would have been fatally defective had the Ministry been cited as a party to the proceedings. The respondent argues that the net effect of failure to properly identify the authority that made the impugned decision is that the appellate court cannot relate to a non-existent adjudicator. That is not so, in this case, as it is very clear that the appeal is against the arbitral award issued by Arbitrator P. Kandengwa and dated 23 September 2024. The appeal would have been fatally defective if the appellant had only referred to the Ministry and had not

proceeded further to clarify that the arbitral award was handed down by the Arbitrator P. Kandengwa on 23rd September 2024. The appeal would be fatally defective in the absence of such clarification as it would then be unclear which arbitral award is sought to be impugned by the Appellant. Thus, there is no prejudice caused by the mentioning of the “Ministry of Public Service” in the notice of appeal. In that regard, the first preliminary point lacks merit.

Whether the grounds of appeal raise points of law.

In determining this issue, the starting point should be distinguishing between a question of law and a question of fact. In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S), the court interpreted what a question of law. It stated that:

“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 in 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.”

Whereas, a question of fact is an issue which seeks to be answered by referring to facts and evidence in a case. It seeks to establish for example, what would have happened, or what could be the contents of a certain document or what could be the terms of a contract, among other things.

In Dhova v Maranatha Ferrochrome LC-H-03-14 at page 3, the Court stated that:

“It is trite that factual conclusions can amount to a misdirection on a point of law if the findings are grossly unreasonable. The allegation is made that the findings were grossly unreasonable. On the face of it, the ground is thus raising a point of law and is properly before the court.”

Thus, if a finding on question of fact is grossly irrational, such can be taken as a misdirection on a point of law. In casu, the issue from the first and second grounds of appeal is whether the arbitrator was correct in finding that the respondent had no obligation to report burning coal on the product flow sheet and that as such she was not guilty of inefficiency. The fact that there was no express provision in the respondent’s contract of employment, requiring the respondent to report burning coal on the product flow sheet is not disputed. Such is a question of fact as it pertains to the terms of an employment contract. However, whether in the absence of such express terms, an employer can dismiss the employee is a question of law. This is because the issue now involves an interpretation of implied terms of the employment contract as well as the common law obligations of a party. Hence, in my view, both the first and second grounds of appeal are based on a point of law and are properly before the court.

Moreover, the issue from the third ground of appeal is whether or not the Arbitrator was correct in assessing evidence afresh. Whether the arbitrator assessed the evidence afresh is a question of fact. However, whether or not it was correct at law for the arbitrator, sitting as an appellate forum to assess the evidence anew is a point of law. Therefore, the third ground of appeal is properly before this Court. It follows therefore that the second preliminary point lacks merit.

COSTS

In taking the first preliminary points, the respondent argued that the appeal ought to be struck off the roll with punitive costs. Also, on the second preliminary point, she argued that the appeal ought to be dismissed with punitive costs. However, she did not provide a

basis for seeking costs on a higher scale. The purpose of a litigant seeking punitive costs includes deterring frivolous litigation, encouraging parties to settle wherever possible, and discouraging the institution and continuation of hopeless cases.

In this case however the court having determined both preliminary points and finding no merit in them, there is no basis for this court granting the respondent’s prayer for punitive costs.

DISPOSITION

The court has found the preliminary points as taken by the respondent to be devoid of merit.

The notice of appeal is not fatally defective and all the grounds of appeal raise points of law.

In the result, after reading documents filed of record and hearing counsel, it is ordered that:

The preliminary points taken by the respondent be and are hereby dismissed for lack of merit.

The Registrar is hereby directed to re-set down the matter on an available nearest date for a physical hearing on the merits.

There shall be no order as to costs.

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Maguchu & Muchada Business attorneys, Appellant’s Legal Practitioners Calderwood, Bryce Hendrie & Partners, Respondent’s Legal Practitioners