Ishmael Mushanguri & 20 Others v Zimbabwe Power Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/99/2014
HARARE, 12 & 28 FEBRUARY 2014
CASE NO. LC/H/99/2014
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/99/2014

HARARE, 12 & 28  FEBRUARY 2014	    		     CASE NO. LC/H/195/13

In the matter between:-

ISHMAEL MUSHANGURI & 20 OTHERS				Appellants

And

ZIMBABWE POWER COMPANY					Respondent

Before Honourable L.M. Murasi, Judge

For Appellants 		-	Mr. T. Katsuro (Legal Practitioner)

For Respondent		-	Mr. H. Mutsauki (Legal Officer)

MURASI J:

Appellants have approached this Court for relief after leaving Respondent’s employment.  The facts show that Appellants were employed on fixed term contracts which were periodically renewed by Respondent.  When these contracts were not subsequently renewed, they commenced the litigation process up to the Arbitrator.  The Arbitrator ruled in favour of Respondent and the Appellants have appealed against that decision.

Appellants’ grounds of appeal are as follows:

The Arbitrator grossly erred when he concluded that the Appellants had no legitimate expectation to be re-engaged by the Respondent.

The Arbitrator grossly erred when he concluded that the Respondent did not casualise the Appellants’ labour.

The Arbitrator grossly erred and misdirected himself when he failed to apply his mind and give ruling on issues that were brought before him for arbitration.

At the hearing, Respondent raised a point in limine that the appeal is based on factual findings and not points of law as provided in section 98 (10) The Labour Act [Chapter 28:01].  Respondent stated that most of the issues raised were on the facts to the extent that the Court was not being called to make a determination on a point of law.  Appellants, on the other hand, submitted that the appeal was properly before the Court as the findings of the Arbitrator were “grossly outrageous” to warrant interference by the Court.  Appellants pointed out that the Arbitrator’s findings were not based on the facts presented so much so that they were grossly unreasonable.  The Court ruled that matter proceeds on the merits.

Appellants, in detailed submissions, stated that on the first ground of appeal of legitimate expectation, they had managed to show that the two requirements needed were present.  Firstly, they stated, they had a legitimate expectation of being re-engaged as Respondent had previously renewed their contracts.  Secondly, they stated that they had provided evidence to the Arbitrator that other persons had been engaged in their stead.  They submitted that the Arbitrator had, however, made a ruling that –

“… none of the claimants could give names of persons that had taken over their jobs following the claimants’ termination.”

The Appellants averred that this was “grossly outrageous” on the part of the Arbitrator.  Appellants’ Counsel referred the Court to pages 51 and 52 of the record.

Respondent’s comments on this point was that it denied any knowledge of the list of individuals as being its employees as it was just a random list which did not amount to concrete evidence and that the Arbitrator had not seen this as adequate evidence.

The Court notes that there is a serious dispute of facts.  It is necessary to prove on a balance of probabilities whether or not the list of persons submitted by Appellants was in fact of persons who replaced them in Respondent’s employment.  The Court is placed in the unenviable position of trying to speculate as to what the truth of the matter should be.  The Arbitrator did not help issues when the record shows that he found that “none of the claimants could give names” when some names are found in the record.  Clearly what the Appellants were attempting to do was to prove the other rung in section 12B (3) (b) (ii).  This is an important aspect in the first ground of appeal.  Respondent concedes that the list was produced before the Arbitrator. The Court is of the view that the Arbitrator was duty bound to clarify and obtain evidence from the Appellants as to the authenticity of the list of names supplied by the Appellants.  The Court is of the view that this is a crucial factor in the determination of the appeal.

The Court will consider the last ground of appeal.  Another notable feature in the record is that the claims for housing allowances and other non pensionable allowances in the claims were not dealt with in the award.  The Arbitrator merely states:

“There was (no) concrete evidence tendered to show the alleged underpayments.  For that reason I dismiss the allegation as without basis.”

Firstly, the award reads “there was concrete evidence.” Probably the Arbitrator meant to say “there was no concrete evidence.” Secondly, The Arbitrator does not state in which category of underpayments he did not find “concrete evidence.” In the claim, reference is made to statutory provisions regarding the payment of allowances.  The Arbitrator should have analysed each category and the evidence relating to it and then make a finding.

On the second ground of appeal, the Arbitrator based his reasons on those of the first ground of appeal and the Court will not comment on those as what is therefore crucial is a resolution of the first ground of appeal.

In light of the above observations the Court is of the view that the Arbitrator has to receive further evidence and make determination on the two issues highlighted above.

The Court therefore makes the following order:

The matter is remitted to the same arbitrator to hear evidence on the following issues:

the employees who allegedly replaced the Appellants – reference being had to the list on pages 51 and 52 of the record.

the alleged underpayments in housing allowances and non pensionable allowances.

The Arbitrator to make a determination on the above issues.

The Arbitrator to convene the hearing within sixty (60) days of receipt of this order.

Munyaradzi Gwisai & Partners, Appellants’ legal practitioners