Peter Gaidzanwa v Lebena Biscuits Manufacturers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/80/2020
HARARE, 16 SEPTEMBER 2019
CASE NO. LC/H/257/18
AND 13 MARCH 2020
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IN THE LABOUR COURT OF ZIMBABWE  	            JUDGMENT NO. LC/H/80/2020

HARARE, 16 SEPTEMBER 2019				CASE NO. LC/H/257/18

AND 13 MARCH 2020

In the matter between:

PETER GAIDZANWA							APPELLANT

versus

LEBENA BISCUITS MANUFACTURERS (PVT) LTD			RESPONDENT

Before The Honourable Makamure J

For the Appellant			Ms L. Mwaurayeni (Legal Practitioner)

For the Respondent 			Ms R. Makumbe (Legal Practitioner)

MAKAMURE J:

In this matter an order dismissing the appeal was made. The following are the reasons.

The appellant was dismissed in terms of Statutory Instrument 15/06 for an act/omission inconsistent with express/implied conditions of employment. The dismissal followed allegations that he failed to adequately supervise his subordinates. He also failed to ensure sufficient production of supplies to some of the respondent’s clients for a particular festive season. Such failure led to financial prejudice to the respondent. His appeal to a Labour Officer was dismissed. Still aggrieved he has appealed to this court. The grounds of appeal are as follows:

“1.	The Labour Officer grossly misdirected himself on facts, and such misdirection led to a misdirection in law, in making a finding that the respondent gave Appellant a summary of what transpired on the hearing day thereby relying on incorrect record of proceedings.

2.	The Labour Officer erred at law in upholding Respondent’s findings that Appellant was guilty of an act of conduct or omission inconsistent with the express or implied conditions of his employment.

3.	The Labour Officer grossly misdirected himself on the facts, and such misdirection led to a misdirection in law, in making a finding that Appellant was inefficient in (the) performance of his duties.

4.	The Labour Officer erred at law in failing to appreciate that the Appellant was unfairly dismissed.

5.	The Labour Officer grossly misdirected himself on facts, and such misdirection led to a misdirection in law, in making a finding that the Respondent incurred losses as a result of Appellant’s inefficiency.”

Grounds of appeal must be clear and concise. As correctly submitted by Ms Makumbe who appeared on behalf of the respondent, grounds of appeal 2, 3 and 4 do not articulate where the earlier tribunal erred. They are all general statements. For example, to simply state that the earlier tribunal “erred at law in failing to appreciate that the appellant was unfairly dismissed” does not disclose anything which the court can scrutinize. This means that such a ground is not properly before the court.

The Supreme Court has on countless occasions admonished litigants on the appropriate framing of grounds of appeal. In John Chiura N. O. and Another v AL Shams Global BVI Limited SC 17/2017, the Supreme Court stated that “… the real issues for determination should be immediately ascertainable on perusal of the grounds of appeal.” In the present case it is not possible to immediately ascertain the issues particularly in grounds 2, 3, and 4.  I am therefore persuaded to agree with the submissions made by Ms Makumbe that these grounds ought to be struck out. These are not grounds of appeal.

The two grounds which remain will now be considered. The first ground of appeal challenges the correctness of the record of proceedings before the lower tribunal. However, it was brought to the attention of the court that the Labour Officer relied on the correct record. Once it is clear that the Labour Officer relied on the correct record, there is no error which this court is expected to consider since the record of proceedings was the appropriate one. So there is no merit in this ground. On the fifth ground, there was a finding that the appellant’s performance did not measure up to the expected standard. As a result of this, the respondent suffered loss. The appellant does not articulate whether or not there was no loss suffered. This would have shed light on the alleged error by the Labour Officer. The ground therefore remains unclear.  This also means that there is no merit in this Ground of Appeal. So in the final analysis, the only two grounds which point to an issue or issues for determination, have been adequately considered. They have been found to have no merit.

It is the prerogative of an employer to prefer charges of misconduct against an employee. (See Zimbabwe Banking Corporation Limited v Sandi Mbalaka SC 55/15). A court of appeal can therefore not interfere with what charges an employer has laid against an employee. An appeal court can interfere where the level or standard of proof, that is on a balance of probabilities, has not been discharged.

In Jayesh Shah v Kindgom Merchant Bank Limited SC 4/17 the Supreme Court quoting from Hebstein Van Vinsen 5th ed, p 1009 stated that:

“The court on appeal will interfere where the exercise of the discretion has not been proper or has been based upon a wrong principle or upon a wrong view principle or upon a wrong view of facts; where the court has purported to exercise its discretion without sufficient legal grounds for doing so…”

In the result, I find that there is no merit in the appeal. The appeal fails.

Accordingly, it is ordered that:

1.	The appeal be and is hereby dismissed.

2.	Each party bears its own costs.

S Nakonyere, Appellant’s Legal Practitioners

Dube, Manikai & Hwacha, Respondent’s Legal Practitioners