John Chindukuro & Another v Danchip Enterprises (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/544/16
HELD AT HARARE 17 NOVEMBER 2015
CASE NO
JUDGMENT NO LC/H/544/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/544/16

HELD AT HARARE 17 NOVEMBER 2015			CASE NO LC/H/1044/14

& 23 SEPTEMBER 2016

In the matter between:

JOHN CHINDUKURO & ANOTHER				Appellants

And

DANCHIP ENTERPRISES (PVT) LTD				Respondent

Before The Honourable Kudya, J

Appellants			In person

For Respondent		L T Musenga (Legal Practitioner)

KUDYA J:

This is an appeal against an arbitral decision which ruled that the appellants be paid cash in lieu of their leave days which they feel is lower than what they should have been awarded.

The facts giving rise to the case are that the employees after leaving the respondent’s employment approached an arbitrator arguing that they were owed money by respondent.  They say that the money was what they should have been paid because they were doing the duties of a shopkeeper and therefore entitled to the salary for that grade.

The arbitrator	ruled that they had only managed to demonstrate that they were working as general hands.  To that end they are not owed what they claimed except for a few days leave which the employer agreed to pay them.  An order was therefore made reflecting that their only entitlement was the outstanding leave days since the rest had been set off by off duty days which employer had given them to compensate for the extra hours they had worked.  The arbitral order did not go down well with them and this led them to appeal to the Labour Court in the case which is the subject of this judgment.

The appeal grounds were worded as such:

Arbitrator grossly misdirected himself on the facts resulting in a flawed award.

Arbitrator erred by failing to comprehend one of the contractual terms of the employment agreement resulting in prejudice to the appellants.

Arbitrator grossly erred by ignoring the provisions of section 125 Labour Act [chapter 28:01] as read with sec 24 (1) of S.I. 45/93 CBA for Commercial Sectors.

In response to the appeal the respondent maintained that:

Arbitrator did not misdirect self on fact of the case such that no suggestion has been made that no reasonable decision maker could have arrived at that decision.  The appellants are questioning finding of fact which do not constitute points on a question of law.

Arbitrator was correct to respect the sanctify of a contract when he simply gave effect to the agreement between the parties vis-à-vis how they wanted their relationship to be regulated prior to the termination of employment.

Arbitrator did not err by accepting terms and conditions of employment between the parties as the validity of such contract was never challenged but that the claimants accepted that they were regulated in terms of such contract but would want terms and conditions to be applied selectively where they favour them and disregarded where they appear not to be favourable to them.

In the result the respondent prayed that the appeal be dismissed with costs.

The law dealing with appeals from arbitration is settled. See section 98 (10)

Labour Act [Chapter 28:01].  As to what a point of law and fact is see Sable Chemicals Industries Ltd v Easterbrooke SC-18-10.  Applying this law to the facts of the matter at hand each of the appeal grounds is addressed below.

Ground One

Appellants argue that arbitrator came up with a flawed award because he grossly misdirected self on the facts.  They elaborate that in their written and oral submissions to say that an example of such misdirection is demonstrated by fact that he only considered the overtime schedule submitted by the respondent which schedule was only for March 2014 hence did not give a full picture of the overtime and underpayment of the salaries that the appellants claimed.  A reading of the award speaks to the fact that when arbitrator looked at the evidence presented to him on the overtime and underpayment whether in sample form of incomplete form he concluded that the appellants were not entitled to what they were claiming hence his ruling.  It is patently clear from that reasoning and the respondent’s response that such was clear factual finding of fact which is not appealable at law.

There is nothing in the submissions by the appellants to demonstrate that arbitral conclusions based on the sample evidence were so outrageous as to demonstrate that arbitrator had taken leave of his senses thus elevating the query to a point of law.  The court is satisfied that whilst it might have a different opinion on the same facts that is not sufficient ground for it to tamper with the arbitral award. 	This ground lacking in merit should therefore fail.

Ground Two

This ground speaks to essentially the same argument made in ground one above.  As already stated there is no demonstrable gross irregularity tantamount to a point of law calling for this court’s interference.  In the result the fate of ground one should also befall this ground.  It should also fail.

Ground Three

Section 125 Labour Act obliges an employer to keep records pertaining to his workers vis  remuneration, time worked etc.

The arbitrator in his ruling indicated that he made his decision based on what the appellants and the respondent presented before him.  The court has no reason to doubt that assertion hence it consequently has no reason to rule that arbitrator erred on a point of law as alleged by the appellants.  In the ultimate the ground is also without merit and is not supported by the record.   It should also fail.

IT IS ORDERED THAT

All the appeal grounds being without merit the appeal be and is hereby dismissed.

Arbitral award is to stand.

Each party to bear own costs.

Musemwa & Associates, respondent’s legal practitioners