Pressmore Mataruse v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/319/2016
HARARE, 26 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/319/2016

HARARE, 26 FEBRUARY 2016			       CASE NO. LC/H/884/15

AND 13 MAY 2016

In the matter between:-

PRESSMORE MATARUSE				Appellant

And

CITY OF HARARE						Respondent

Before Honourable B.S. Chidziva, Judge

Appellant			In person

For Respondent		W. Chiwawa (Principal Law Officer)

CHIDZIVA, J:

The appellant is appealing against the decision of Honourable Arbitrator T.C. Sengwe that was handed down on 18 September 2015.  The award is couched as follows;

“After a careful consideration of the submissions by the parties.  I am persuaded on the evidence before me that the absence of the claimant from work was without valid reason or lawful excuse thus the dismissal was correct in the circumstances.

In the result the claimant’s claim is dismissed, I so award.”

The brief history of the matter is that the Appellant was employed by the Respondent as a firefighter based at Kuwadzana Fire station.  He was charged with being unlawfully absent from work from the 19th February 2009 to the 20th March 2009.  The Appellant was dismissed from employment after a disciplinary hearing on 12 April 2013.  Appellant appealed to the Employment Council for Harare Municipal Undertaking and a certificate of no settlement was issued.  The matter was referred for compulsory arbitration.  The arbitrator ruled that the dismissal was fair.  Appellant has now appealed against this decision and the grounds of appeal are as follows;

That he was unfairly dismissed because he was verbally suspended by Mr S Kwaramba on 19 February 2009.

The arbitrator did not carefully consider the evidence before it.

The Respondent in response told the court that;

Paragraphs 2, 3, 3 and 6 of the appeal did not raise any question of law.

Appellant was fairly dismissed because he absented himself from work without a valid reason or lawful excuse.

It is common cause that Appellant was absent from work between 19 February 2009 and 20 March 2009.

What is to be decided is whether

He had a lawful excuse for being absent.

The grounds of appeal 2, 3, 4 and 6 raise any questions of law or not.

Appellant has stated that his absence from work was excusable because he was verbally suspended by Mr Kwaramba a senior leading Fire Fighter.  No evidence has been adduced to support his claim.  Mr Kwaramba was also not called to testify before the disciplinary hearing committee.

Furthermore on the issue of whether the alleged grounds of appeal are on points of law or not the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 states what a question of law is.  Gubbay CJ described the question of law as follows;

“(a)	 a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.

(b)	a question as to what the law is.  Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

(c)	any question which is within the province of the judge instead of the jury is called a question of law.”

Grounds of appeal 2, 3, 4 and 6 are based on factual facts.  The questions to be answered on these grounds is whether there was any verbal suspension of the appellant or not.  The arbitrator has made a factual finding to the effect that there was no evidence to prove any verbal suspension.  From his findings this court has not found any unreasonableness in the findings of the arbitrator.

To that end therefore this court finds that the appeal lacks merit.

Accordingly it is ordered that

The point in limine be and is hereby upheld.

The appeal be and is hereby dismissed with costs.