Morgan Mugona & 159 Others v Town and Country

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/174/2014
HARARE, 18 & 28 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/174/2014

HARARE, 18 & 28 MARCH 2014			 	         CASE NO. LC/H/982/13

In the matter between:-

MORGAN MUGONA & 159 OTHERS				Appellants

And

TOWN AND COUNTRY						Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellants		-	Mr. L. Chimuriwo (Legal Practitioner)

For Respondent		-	Mr. T. Tandi (Legal Practitioner)

MAXWELL J:

This is an appeal that was filed on 2 December 2013.  The background of the matter as given by the Appellants in their heads of argument in that the Appellants were employed by the Respondent in different capacities on different dates within its establishment.

On 15 April 2010 Respondent entered into a Franchise Agreement with Upridge Investments (Pvt) Ltd in terms of which Respondent temporarily transferred all its trade systems and employees to Upridge Investments (Pvt) Ltd.

Respondent disputes employing all the Appellants as they allege, and further states that it never employed some of the Appellants.  Appellants allege that the Franchise Agreement was officially cancelled on 21 March 2012.  The cancellation was confirmed by honourable Arbitrator Lucas on 30 September 2012.  Appellants allege that they reverted back to 	CFI on the 21 March 2012 when the agreement was cancelled.  On 12 September 2012 Upridge (Pvt) Ltd was placed on provisional liquidation.  Appellants allege that their contracts of employment were terminated through one letter dated 28 January 2013.   They claim that the termination was unprocedural and unlawful.  They referred the matter to conciliation which failed.

The matter was then referred for arbitration and honourable Arbitrator T. Mlilwana found in favour of the Respondent and dismissed the Appellant’s claim, culminating in the current appeal.

Respondent on the other hand alleges that when Upridge was placed under Provisional liquidation, the liquidator became the Appellants’ employer.  Respondent also claims what the Franchise Agreement terminated as a result of liquidation.

At the hearing of the matter Respondent raised two points in limine;

That the appeal was improperly before the Court as it was filed out of time.

The basis for this submission was that on Form LC 3 Appellants indicated that the date of determination was 1 November 2013.  Accordingly, Respondent submitted, the last day of noting the appeal was 27 November 2013 since the rules expressly provide that an appeal should be filed within 21 days.  Respondent referred to rule 15 (1) of the Labour Court Rules SI 59 of 2006.  The appeal was filed on 2 December 2013.  Respondent submitted that as the appeal was filed out of time and as no condonation had been sought it was a nullity and ought to be dismissed.

In response Appellants submitted that the 1st November 2013 was the date on which the award was made in the absence of the parties.  It was not the date on which the Appellants were served with the award.  The rule referred to by the Respondent specifically say;

“…. within twenty-one days from the date when the appellant receives the decision, determination or direction or award ….” (underlining for emphasis)

In casu the date when Appellants received the award was not proved.  Neither party was able to clarify the date of receipt of the award by Appellants.  On that basis the first point in limine had no merit.

That no question of law arises from Appellants’ notice of appeal.

Respondent submitted that Appellants were using phrases “on assessing facts” and “applying mind to facts” as well as referring to dates which are factual issues.  Nothing legal arises therefrom.  In response the Appellants submitted that a gross misdirection on facts amounts to a misdirection of law. They further submitted that once that allegation is made the Court has to be advised of which facts are concerned.

GARWE JA stated that,

“The position is settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law.  For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection, in other words, that the determination was irrational – see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), 670 A-B”

See Sable Chemical Industries Limited v David Raster Easterbrook SC 18/10 on Page 5.

It is therefore necessary to consider the grounds of appeal before this Court.  The first ground of appeal is that the honourable arbitrator erred at law in finding that the Appellants were never unlawfully and procedurally dismissed by the Respondent and also erred in making a finding that the stand taken by the Respondent; through a letter authored by P. Rambanapasi dated 28 January 2013 addressed to the Appellants does not amount to unlawful dismissal.

Whether or not Appellants were dismissed by Respondent is a factual issue.  Further whether or not the letter authored by P. Rambanapasi terminated their employment is also a factual issue.  The arbitrator made findings that;

At the time Afro Foods was liquidated Appellants were still employed by Afro Foods.

Appellants submitted no proof that they were dismissed.

I agree with the Respondent that this ground of appeal is clearly a challenge on factual findings and is not appealable.

The second ground of appeal is that the arbitrator erred at law in making a finding that the Appellants are not employees of the Respondent and also erred in failing to consider that the employment status of the Appellants was regulated by the Franchise Agreement.  The arbitrator made findings that;

the Appellants remained employees of Afro Food (Pvt) Ltd under liquidation.

the Franchise Agreement never came to expiry.

Clause 7.2.3. of the Franchise Agreement would only haven been operational after termination in April 2013

Appellants agreed to the notion that their employment terminated as a result that Afro Foods was placed under liquidation through a letter by their legal practitioners to Messrs Kantor & Immerman dated 5 November 2012.

Appellants contended that they ceased to be employees of Afro Foods and were employees of Respondent after the cancellation of the Franchise Agreement, however the cancellation of the Franchise Agreement was confirmed by the Arbitrator on 30 September 2012 after Afro Foods had been placed under liquidation.  The liquidation preceded the confirmation of the cancellation by the Arbitrator.

All these are factual issues and the arbitrator’s findings are not appealable and the second ground of appeal also fails.

The third ground of appeal is that the arbitrator erred in law by making a finding that Appellants acquiesced to their employment with Upridge Trading (Pvt) Ltd and failed to consider the principle that Appellants have an obligation not to sit on their

rights.  The arbitrator erred in failing to consider that the employment status of Appellants was regulated by the Franchise Agreement.  The arbitrator was of the view that Appellants’ claim to the liquidator can be taken as acquiesance of their employment with Afro Foods.  He also stated that Appellants had not challenged their transfer from Respondent to Afro Foods and had worked for a period of about two and half years. In his view Appellants had tacitly agreed to their transfer.  The issue of whether or not the employment status was governed by the Franchise Agreement has already been dealt with above.  This ground of appeal also fails as it is challenging findings on factual issues.

The fourth ground of appeal, even though it is not the last is that finally the arbitrator erred in making a finding that the Appellants were not unfairly and unprocedurally dismissed by Respondent when he made a finding that Appellants were not Respondent’s employees.  The arbitrator made a finding that Appellants were never dismissed by Respondent as they were still employed by Afro Foods.  This is also factual issue which cannot be raised an appeal therefore this ground of appeal fails.

The fifth ground of appeal is that the arbitrator grossly erred on the facts that no reasonable adjudicating authority applying their mind would arrive at the same determination.  I agree with Respondents submission that this ground of appeal is vague.  Appellants did not substantiate the allegation either in heads of argument or in oral submissions.  There is no indication of which facts are being challenged.  All Appellants submitted is a sweeping statement which does not show which factual findings can be said to be irrational.  They have not demonstrated that the arbitrator would not have determined as he did had there been no misdirection.  I find that this ground of appeal fails for lack of particularity.

The sixth ground of appeal is that the arbitrator erred at law in holding that termination of employment occurred upon liquidation as opposed to the date of termination of the Franchise Agreement by the 21st of March 2012.  The arbitrator found that the date of termination was confirmed by the Arbitrator on 30 September 2012 and therefore that is the date of termination.  This clearly is a factual issue and cannot be appealed against.

None of the grounds of appeal raises a question of law and accordingly the appeal must fail.

Accordingly the appeal is dismissed with costs.

Messrs Lawman Chimuriwo, Appellants legal practitioners

Kantor & Immerman, Respondent’s legal practitioners