Mettalon Gold Zimbabwe v Collen Gura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/348/16
HELD AT HARARE ON 9TH FEBRUARY, 2016
CASE NO. LC/H/348/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/348/16

HELD AT HARARE ON 9TH FEBRUARY, 2016     CASE NO. LC/H/379/13

AND 27TH MAY, 2016

In the matter between:-

METTALON GOLD ZIMBABWE					    Appellant

And

COLLEN GURA								    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Advocate F. Girach

Instructed by Scanlen and Holderness

For Respondent	:	Advocate S. Hashiti

Instructed by Dube, Manikai and Hwacha

MHURI J.

Three points in limine were raised by Respondent challenging Appellant’s grounds of appeal.

These were that:-

The grounds of appeal 1, 2 and 3 are not properly before the Court as they are all on questions of fact.

In the grounds of appeal, the parties are not properly set out.

Appellant has approached the Court with dirty hands, as it did not comply with the directive given by the Arbitrator to the effect that he was to proceed with the matter on the merits.

On the first point, it was Respondent’s submissions that:-

Whether Respondent was employed as at 2011 is a question of fact.

Whether the factual position still pertains, also speaks to a factual scenario.

Whether Respondent’s salary was paid by Appellant is also a factual issue.

On the second point it was Respondent’s submission that, the grounds speak to parties that are not before the Court.  They do not relate to parties cited.

The only ground, Respondent submitted was properly before the Court is ground 5 as ground 4 is equally afflicted by improper reference to parties.

I will deal with the third point first.  The particular “directive” referred to by Respondent, reads as follows:-

“In light of the above analysis, it is my conclusion that the Zimbabwe legislation is the applicable legislation governing the employment relationship between the claimant and the 2nd Respondent.

This therefore confers me with the authority as the most appropriate jurisdiction to the dispute in terms of Section 98 of the Labour Act [Chapter 28:01] as read with the Arbitration Act [Chapter 7:15].

I therefore dismiss the 1st Respondent’s objection.

It is my ruling that I shall proceed to hear and make a determination on the merits of the case.

I so award.”

(Underlining my own)

I find the point in limine without merit as the award does not in any way put any obligation on the Appellant to do anything.  There is nothing Appellant was supposed to comply with except to appear before the Arbitrator on the day of hearing on the merits.  It was not for the Appellant to set a date of hearing.  If the Arbitrator decided to await the determination of the appeal by the Labour Court, that would not be Appellant’s fault.

The point was ill taken and is therefore dismissed.

I turn to the second point.  Grounds 1 to 4 refer to parties as cited in the arbitration proceedings.

Before the Arbitrator, Collen Gura was the claimant; Metallon Gold Zimbabwe (Private) Limited was 1st Respondent and Metallon Corporation PLC 2nd Respondent.

Filed in this Court on the 30th May, 2013 is a Notice of Appeal (LC3) citing:-

Metallon Gold Zimbabwe (Private) Limited as Appellant and Collen Gura as Respondent.  Also filed on the 11th June, 2013 by Appellant’s legal practitioner,  is a notice of joinder of party, to join  Metallon Corporation PLC as 2nd  Appellant in this appeal.

In the first 4 grounds of appeal, the parties are being referred to in the manner that they were cited in the arbitration proceedings.

This is an irregularity.  I do not however find it to be so fatal as to render the appeal a nullity.  No prejudice was shown to have been suffered by Respondent as a result.  Respondent managed to respond to the appeal adequately, filed detailed heads of argument correctly citing the parties as 1st and 2nd Appellant vs Respondent (C. Gura) and came prepared to argue the appeal as it was.  The Respondent counsel only raised this point after the Court had asked Appellant’s counsel on the issue.

This point cannot be upheld.

As regards the first point, it is a requirement of the law [Section 98(10)] of the Labour Act that an appeal against an arbitral award to this court must be premised on a point of law.

Factual findings are not appealable unless it is alleged that there was a gross misdirection on the facts as to amount to a misdirection on the law.

It is only grounds 1,2 and 3 that Respondent submitted fell foul of Section 98(10) of the Labour Act.

The grounds of appeal in question read as follows:-

“(1)	The arbitrator grossly misdirected herself by determining that claimant was employed by 1st Respondent as at 30th June, 2011 when the record clearly shows that claimant’s employment contracts with 1st Respondent was mutually terminated and claimant was paid his terminal benefits.

(2)	The arbitrator erred by holding that claimant was still employed by 1st Respondent even after he entered into a new contract with 2nd Respondent.  She failed to appreciate that the new contract with 2nd Respondent entailed performing some duties at 1st Respondent in his capacity as its Group Chief Executive Officer.

The arbitrator grossly misdirected herself by holding that there was no arrangement between 1st and 2nd Respondents when in fact the claimant himself had confirmed the existence of such an arrangement in writing.

………………………………………………………….

………………………………………………………….”

Admittedly, these grounds of appeal are based on the Arbitrator’s factual findings.

A gross misdirection on the facts amounts to a misdirection on the law.  This is trite.  In grounds 1 and 3 Appellant makes the allegation that the Arbitrator grossly misdirected herself.

I agree with Appellant’s submission that once there is a gross misdirection on the facts, it becomes a misdirection on law.

See:	NATIONAL FOODS V MUGADZA SC 105/95

Ground 2 does not make any such allegation.  On this ground, I accept Respondent’s submission that it is not premised on a point of law and should be struck off.

Consequently therefore this point in limine  is upheld in so far as it relates to the 2nd ground and not the 1st and 3rd grounds.

It is therefore directed that the appeal proceeds for hearing on the merits in respect of grounds 1, 3, 4 and 5.

The Registrar is to reset the matter on notice to both parties.

Scanlen and Holderness – Appellant’s legal practitioners

Dube, Manikai and Hwacha – Respondent’s legal practitioners