Regal Insurance Company v Leonard Mugabe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/442/13
HELD AT HARARE 8TH JULY 2013
CASE NO LC/H/385/12
AND 13 SEPTEMBER 2013
JUDGMENT NO LC/H/442/13
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/442/13

HELD AT HARARE 8TH JULY 2013		  CASE NO LC/H/385/12

AND 13 SEPTEMBER 2013

In the matter between:-

REGAL INSURANCE COMPANY			Appellant

And

LEONARD MUGABE					Respondent

Before The Honourable G Mhuri, Judge

For Appellant		Mr A.T. Muza(Legal Practitioner)

For Respondent		Mr R Masomera(Grievance Handling

Officer ZFTU)

MHURI, G:

Appellant’s grounds of appeal were that:-

the  Arbitrator deviated from the terms of reference

the Arbitrator awarded arbitration costs were supposed to have been determined by the conciliation body

the award is biased towards the employee

points of law were being violated therefore award was misdirected

Respondent’s response to the appeal can be

summarised as follows:-

that the appeal does not raise any point of law

that the Appellant raises allegations of bias against the Arbitrator, claimant and Respondent

and as such it is confused baseless and must be struck off.

Our Courts in various cases have defined what

constitutes a point of law

It means:-

“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.

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.

...”

See:-	Muzuva v United Bottlers  1994 (1) ZLR 217

Hama v NRZ 1996 (1) ZLR 664 (S) at 670

Reserve Bank of Zimbabwe v Corrine Granger &

Anor SC 34/2001

In the case of

National Foods Ltd v Steward Mugadza SC 105/95

Ebrahim JA (as he then was) had this say

“It seems to me that it was open to the legal representative of the Appellant in its appeal to this Court to challenge the findings of the Tribunal on the basis that it misdirected itself in its findings on the facts.

It is true that this Court only has jurisdiction to hear an appeal from the Tribunal on a point of law...

But clearly if there is a serious misdirection on the facts that amounts to a misdirection in law.  The giving of reasons that are bad in law constitutes a failure to hear and determine according to law.”

Based on the principles as enunciated in the quoted cases, I am pursuaded that the appeal raises questions of law and is therefore properly before this Court.

The Arbitrator’s terms of reference were two:-

to,	(i)	determine whether S Mhizha and L Mugabe were

employed as underwriters or agents by the company.

(ii)	if employed as underwriters, to determine

whether they were underpaid or not.

On the evidence placed before him, the Arbitrator made factual findings that there was an employer – employee relationship between Appellant and Respondent, that Respondent was employed as an underwriter and not an agent.

Having made such findings, the Arbitrator then ought to have made findings on whether as an underwriter Respondent was being underpaid.  This was to be in compliance with the terms  of reference.  The determination of this term would have been the end of the Arbitrator’s mandate.

In casu however, the Arbitrator went further than determining the two issues referred to him.

He determined that Respondent had been unlawfully dismissed and ordered his reinstatement.  This was a serious misdirection on his part as this issue was not an issue before him for determination.

In terms of section 98 (7) of the Labour Act [CAP 28:01] it is the Labour Officer who determines the costs to be paid by each party at arbitration.

“In referring a dispute to compulsory arbitration by a person other than a labour officer or a designated agent... the Labour Court or Labour Officer shall determine the share of costs of arbitration to be born by each party.”

In casu, it was not disputed that the share of costs had been determined at 50% per party.  Both Parties had paid their share of costs but the Arbitrator in his award ordered Appellant to reimburse Respondent the share of costs Respondent had paid.  This in my view was not proper.

Having found that the Arbitrator misdirected himself, the award, in as far as it relates to reinstatement and costs can not be allowed to stand.

In that regard, the award is set aside and substituted with the following:-

the claimant was employed by the Respondent as an underwriter and not an agent.

the Respondent pays claimant all his arrear salaries and benefits due to him as an underwriter, calculated from the date claimant was engaged by Respondent to the date the contract of employment was terminated

Each party to bear its own costs.

Mawere and Sibanda, Appellant’s (Legal Practitioners)

Zimbabwe Federation of Trade Union, (Respondent’s Representative)