Pioneer Transport (Private) Limited v Elizabeth Ana Da Silva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/29/2016
HARARE, 13 JULY 2015 &
CASE NO LC/H/211/2015
22 JANUARY 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/29/2016

HARARE, 13 JULY 2015 &				         CASE NO LC/H/211/2015

22 JANUARY 2016

In the matter between

PIONEER TRANSPORT (PVT) LTD				APPELLANT

Versus

ELIZABETH ANA DA SILVA					RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	T Zhuwarara (Legal Practitioner)

For the Respondent	T W Nyamakura (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the arbitrator where he ruled that the respondent employee had been unlawfully dismissed and ordered that she be reinstated with full benefits or that she be paid damages in place of reinstatement.

Facts of the matter are that the respondent who was in the appellant’s employ as a finance director had her services terminated on notice by the appellant following prior discussion about her incompetency or failure to live up to expectations of her post among other things.

She was riled by the dismissal as she felt that it was done improperly in view of the fact that if her performance left a lot to be desired she was of the view that she should then have been dealt with under the Code of Conduct.

This led her to approach arbitration which ruled that indeed her dismissal on notice was irregular since it was premised on her unsatisfactory performance yet she had not been taken through a disciplinary process.

The arbitral ruling irked the employer and drove it to appeal to this court on the instant case which is the subject matter of this judgment. The basis of the appeal is as follows:

The arbitrator erred to hold that the employer could not terminate contract on notice. In fact the respondent’s contract was terminated in full compliance with the law and not dismissed.

Finding that the respondent was dismissed was a serious misdirection since dismissal occurs per disciplinary process and termination may occur by operation of contract such as in case at hand.

The arbitrator erred to hold that no employer could terminate a contract unless such termination is per Code of Conduct. Reality is that contract can be terminated on notice.

The arbitrator erred grossly by holding that the respondent had been dismissed on account of re-structuring and poor performance. Conclusion emanated from an illogical reading of a contextual statement on the notice to terminate. The misdirection was so gross that no reasonable tribunal applying its mind to the facts could arrive at such a decision. In the result the appellant prayed that the appeal be allowed and that the appellant decision terminating the respondent’s services be made to stand.

In response to the appeal the respondent maintained that:

Termination was not on notice per section 12 (4) of the Labour Act as alleged by the appellant. The appellant’s argument is that termination was effected by agreement yet that is inconsistent with the argument that termination was done on notice.

If termination was per 12(4) it was invalid as it did not comply with the three months’ notice requirement not two.

The arbitrator did not find that termination on notice is remedy for employers but rather that on facts of case at hand termination could not be on notice as it disguised disciplinary measure in the absence of a disciplinary hearing.

There is no factual basis for argument that the arbitrator said one cannot terminate on notice at law.

Unfair dismissal finding was properly made and unassailable. The appellant proffered conjured defence that termination was by mutual agreement yet no documentary evidence to that effect was produced.

The appellant could not terminate on notice where reason was misconduct in absence of a hearing termination on notice had to comply with the law both in form and in substance which did not happen in instant case. Mutual termination and terms on notice are mutually in consent and the appellant’s seeking to argue the two simultaneously proved that termination was not done per the law. In the result the respondent prayed that the appeal be dismissed and that the arbitral decision be upheld.

The law relating to appeals against arbitral awards is settled. See section 98 (10) Labour Act and Muzuva v United Bottlers 1994 (1) ZLR 217 for the point of law-fact debate. The only critical question falling for decision in this appeal is whether it can be said that the arbitrator’s decision is impeachable in the wake of all the facts of the case and what the law provides for.

It is also pertinent to note that the bulk of the facts of the matter as set out above are basically common cause. Despite the itemised appellate grounds the only critical issue from all of them is whether indeed the arbitrator was right or wrong to find that the respondent was unlawfully dismissed.

Before dealing with each of the grounds in detail it is important to note that the law is settled vis termination of employment on notice. The cited cases of Chirasasa, Zuva Labour Court case and now the Supreme Court decision on the Zuva case have put that legal debate to rest as to whether employment can be terminated on notice. It is not this court’s intention to restate the facts and the law propounded in the cases referred to above which was also aptly captured in the appellant’s heads of argument.

Stemming from the above the court has to decide whether from all the facts of the case it can be said that the arbitrator wrongly interpreted the law on the facts in such a gross manner that his decision has to be vacated. Each of the appeal grounds is discussed below:

Ground 1

A reading of the arbitral award speaks to the fact that arbitrator was quite alive to the law which provides for termination of employment on notice. He however reasoned that the facts of the case at hand were inconsistent with that since the notice was predicated on the respondent’s alleged under performance an issue which if the appellant was intent on pursuing should have been pursued by conducting disciplinary proceedings. The court cannot find any other better explanation than that which was proffered by the arbitrator on this aspect. It is therefore apparent that there is no breach of any point of law in this respect which the court can use to set aside the arbitral award. This ground lacking in merit should fail.

Ground 2

As stated earlier on the ground speaks to essentially the same issue though this has been decimated to form the various grounds which this court is called upon to decide. Sentiments expressed on appeal ground one above apply here with equal force and deserves no restatement. Consequently this ground should also fail as it fails to satisfy the test set out at the onset of this judgment as to what has to be set out to persuade the court to overturn an arbitral award. As earlier stated there is no debate as to what the laws says. What is of critical note is that what happened on the ground is not what is as per the dictates of the law hence the arbitral finding that the respondent was dismissed irregularly. The ground being without merit should also fail.

Ground 3

It would sound like driving the point into the ground but the award is so clear that the arbitrator appreciated what the law provided for and the distinctions which the appellant seeks to draw. On a factual plane however it is apparent that the termination was premised on the arguably sub-standard performance by the respondent on issue which could not be resolved without disciplinary processes being conducted. The court can thus not fault the arbitral award on account of this ground. The ground should also fail.

Ground 4

This is the over-arching ground where the appellant tries to get to the niceties of defining what the appellant meant by “pursuant” etc. It is apparent from all the facts of the matter that the appellant was disgruntled by the respondent’s performance and to deal with that it decided to terminate her on notice. It is that which the arbitrator found as faulty. This court entirely agrees with the arbitrator’s reasoning that the performance concerns needed disciplinary action not disguised termination which was done by the appellant. The court finds no fault with the arbitral reasoning in this respect and has no cogent basis of setting the award aside.

In the ultimate it is clear that the appeal grounds are without merit and they should fail.

IT IS ORDERED THAT:

The appeal being devoid of merit in its entirety, it be and is hereby dismissed with costs. The arbitral award is to accordingly stand.

Mahere & Sibanda, appellant’s legal practitioners

Mtetwa & Nyambirai, respondent’s legal practitioners