Leonard Dapira v P.G. Merchandising (Private) Limited t/a P.G. Timbers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/734/14
HELD AT HARARE ON 22nd JULY, 2014
CASE NO. LC/H/880/13
AND 24TH OCTOBER, 2014
JUDGMENT NO. LC/H/734/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/734/14

HELD AT HARARE ON 22nd JULY, 2014      CASE NO. LC/H/880/13

AND 24TH OCTOBER, 2014

In the matter between:-

LEONARD DAPIRA							Appellant

And

P.G. MERCHANDISING (LIMITED) T/A

P.G. TIMBERS								Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. E. Mutandiro (Legal Practitioner)

For Respondent: 	Mr. A.T. Muza (Legal Practitioner)

MHURI J.:

This is an appeal against an arbitral award.  In terms of Section 98(10) of the Labour Act, [Chapter 28:01] appeals such as this one must be premised on a point of law.

Appellant’s grounds of appeal as stated in his notice of appeal are that:-

The Arbitrator erred at law in holding that the Appellant was not constructively dismissed.

The Arbitrator erred on a point of law by holding that the contract of employment was mutually terminated.

The Arbitrator misdirected herself by making references to Statutory Instrument 15 of 2006 which is a default code of conduct which had no relevance to the case on hand.

The Arbitrator misdirected herself on points of law which misdirection is so outrageous in its defiance of logic that no reasonable arbitrator applying her mind would have come to the same conclusion.

Two points in limine were raised by Respondent in its notice of response.  These are that:-

The appeal is not based on points of law,

The grounds of appeal in particular the first and fourth grounds are not specifically set out but are general.

Despite having been given notice of these points in limine, Appellant decided not to address them in his Heads of Argument, the argument being that he will address them during the hearing.  This is a wrong approach to take.  This gives the impression that the points are not being challenged, and should be taken as admitted.

During the hearing, Appellant was unable to satisfactorily address the points particularly the first point as raised by Respondent.  His main submission was that a serious misdirection on the facts amounts to a misdirection on the law.  This is correct, but do his grounds of appeal aver or show so?

See:

FLORENCE CHINYANGE V JAGGERS WHOLESALERS SC 24/2004.

The first ground, is an attack on the arbitrator’s factual finding that Appellant was not constructively dismissed.  Though prefaced with the words “erred at law” it is not shown how the arbitrator seriously misdirected herself on the facts to amount to a misdirection on the law.

The second ground, equally is an attack on the arbitrator’s factual finding that the contract of employment was mutually terminated.  It is not averred or demonstrated how she seriously misdirected herself.

The third ground is equally a finding of fact.

The fourth ground, is not a ground of appeal but a restatement of the principle with particular reference to the first three grounds I suppose.

The bottom line is that, the Arbitrator heard the evidence that was adduced as to whether or not Appellant was constructively dismissed.  Witnesses were called to give evidence, were cross-examined and she came to the conclusion that Appellant was not constructively dismissed.  This was a factual finding.

The facts were that:-

Appellant was a Marketing Executive.

He was offered of position of Operation Executive and was to be transferred to Bulawayo.

He refused to be transferred and proffered his reasons.

He was advised that his fears would be addressed.

He was given time to think over it by Respondent.

He however tendered his resignation after which

He asked to finish up the month.

The Arbitrator applied the law as stipulated in Section 12B (3) of the Act and found that there were no intolerable conditions perpetrated by Respondent that led to Appellant resigning.  She found constructive dismissal not to have been proved.

I find that there was no misdirection on the facts let alone serious, by the arbitrator, nor on points of law which misdirection is so outrageous in its defiance of logic, as was averred by Appellant in his fourth ground of appeal.

It is trite that grounds of appeal must be brief and concise, must not be too general.  Appellant’s grounds are not clothed with the facts upon which the challenge is based, as is required in form LC3 of this Court’s Rules Statutory Instrument 59 of 2006.

On the first point in limine, alone, I find that the appeal is improperly before this court, as it does not comply with the requirement that it be premised on a point of law.  It follows therefore that it must be struck off.  Appellant did not challenge or address the issue of costs on a higher as prayed for by Respondent.  I will grant it as prayed.

To that end, it is ordered that the appeal be and is hereby struck off with costs on a higher scale (Attorney/client).

Chakanyuka and Associates–Appellant’s Legal Practitioners

Mawere and Sibanda–Respondent’s Legal Practitioners