Shomet Construction (Pvt) Ltd v Claudiou Chivaviro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/763/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/763/16

CASE NO. LC/H/415/13

HELD AT HARARE

ON 17 NOVEMBER 2016 & 2 DECEMBER 2016

BEFORE THE HON. MRS. JUSTICE L. HOVE &

THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

SHOMET CONSTRUCTION (PVT) LTD				APPELLANT

AND

CLAUDIOUS CHIVAVIRO						RESPONDENT

For Appellant							Mrs. R. Zimvumi

(Legal Practitioner)

For Respondent							Mr. J.M. Bamu

(Legal Practitioner)

MURASI J.,

This is an appeal against the decision of the arbitrator. The brief facts of the matter are as follows. The Respondent was employed as a gate guard. He was dismissed from employment and approached the Labour Office. Through conciliation, respondent was reinstated to his position. On reinstatement, he was seconded to perform duties for appellant. Appellant subsequently terminated respondent’s employment contract. The respondent approached the NEC for the Engineering and Iron and Steel Industry for relief. The matter ended up in arbitration and the arbitrator found in favour of the respondent. Appellant is dissatisfied with that decision and has approached this Court for relief.

Appellant’s grounds of appeal are formulated as follows:

1. The arbitrator erred at law in finding that the respondent was working under Engineering governed by the Collective Bargaining Agreement for the Engineering Industry and the NEC Engineering Arbitrator has (had) jurisdiction over this matter.

2. The arbitrator erred in ordering reinstatement when the Labour Act provides that the employer may pay damages in lieu of reinstatement when the relationship between the parties is no longer tenable.

3. The arbitrator did not satisfy herself that at law the respondent was unlawfully dismissed.

Mrs. Zimvumi, for the appellant stated that she largely abided by the documents filed of record. She submitted that the arbitrator should have declined jurisdiction in the matter as the appellant had made submissions that it fell under the Construction Industry thus removing any jurisdiction which the arbitrator might have purported to possess. It was further submitted that the arbitrator had erred in rejecting the time-sheets presented by the appellant which clearly showed that the respondent was employed by the appellant. In this regard further argument was advanced that the arbitrator had not given any cogent reasons for such rejection. Mrs. Zimvumi further argued that the issue of jurisdiction raised by the appellant had a bearing in deciding whether the respondent was unfairly dismissed or not as the determination of whether respondent was employed in the Construction Industry would have meant that the termination of the employment contract was lawful. She further stated that, based on appellant’s submissions, the arbitrator was supposed to decline jurisdiction and refer the matter to the Construction Industry.

Mr. Bamu, for the respondent advised that he was also going to abide by the documents filed of record. He stated that the second ground of appeal was no longer an issue before the Court as the arbitral award was subsequently amended to cater for appellant’s concerns and it therefore meant that there were two grounds of appeal before the Court. Mr. Bamu submitted that respondent had been seconded to another host company and this did not translate into a new contract of employment. He argued that the employment relationship which existed before the secondment was extant and still binding between the parties. He indicated that Shomet Industries had merely transferred the respondent to a new work station without affecting the prevailing working relationship between the parties. He went further and quoted from Professor Madhuku’s Labour Law in Zimbabwe. Mr. Bamu argued that if there was a desire to terminate the contract with the respondent, appellant ought to have referred him to the original employer. He urged the court to dismiss the appeal as it was devoid of merit.

It is trite that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of a misdirection. It is also a truism that an appeal made in terms of section 98 (10) of the Labour Act (Chapter 28:01) should be on points of law. What amounts to a question of law was considered by the Supreme Court in Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). Where a litigant alleges misdirection on the facts, there should be an allegation of a gross misdirection. The appellant’s first ground of appeal alleges the arbitrator erred at law in finding that the respondent belonged to the Engineering Industry. The first ground of appeal based of a factual finding. The appellant is supposed to demonstrate that the misdirection was so gross that a reasonable court would not have arrived at the same decision on similar facts. In Sable Chemical Industries Limited vs David Peter Easterbrook SC 18/10 GARWE JA had this to say at page 11 of the cyclostyled judgment:

“The Legislature for good reason has provided that that there can be no appeal on the facts but only on the law. In order to get around this provision, some legal practitioners couch their grounds of appeal so that, on the face of it, they appear to raise issues of law when in fact they do not. ….The words ‘on a question of law’ have been added simply to give the impression that what is being raised is a question of law and yet the real issue raised in that ground of appeal is whether or not the committee (was) properly constituted, clearly an issue of fact.”

In casu, the first ground of appeal attacks the finding of the arbitrator on whether respondent belonged to the Construction Industry or to the Engineering Industry. This was clearly a finding of fact. Appellant merely stated that the arbitrator ‘erred at law’. As this was a finding of fact, appellant was enjoined to aver a gross misdirection on the part of the arbitrator. This was not done. In my view this ground of appeal does not satisfy the requirements of section 98(10) of the Act.

As pointed out by Mr. Bamu, the second ground of appeal no longer applies. The Court did not hear appellant persist on this ground of appeal. The Court will therefore not proceed to address it.

The third ground of appeal states that the arbitrator did not satisfy herself that at law the respondent was unlawfully dismissed. The issue of law that the Court is supposed to grapple with in this ground of appeal is difficult to grasp and digest. Is it averred that there was no evidence on which the arbitrator proceeded to find that the respondent was unlawfully dismissed? It is my view that appellant did not understand the gist of the award by the arbitrator. In any event, grounds of appeal are supposed to be succinct and clearly point out what the appellate should consider as a point of law arising from the decision of the lower court or tribunal. This ground of appeal does not in any way suggest in what way the arbitrator was wrong in arriving at the decision that she did. It makes a simple statement. It does not allege a gross misdirection. In her submissions, Mrs. Zimvumi did not dwell on this ground of appeal to show any misdirection on the part of the arbitrator. My considered view is that the ground of appeal falls short of the requirements prescribed in section 98(10) of the Labour Act and should accordingly fail on that score.

Having stated that the grounds of appeal are not on points of law, it should be the end of the appeal. However this Court will proceed to determine the matter on the merits. It was not disputed, and Mrs Zimvumi had a difficult time addressing this issue, that the respondent was previously employed as a Gate Guard in Shomet Engineering. Following a dispute between the two parties which culminated in conciliation proceedings, the respondent was reinstated to his former position. When he reported for duty, he was assigned some other duties pending the finalisation of the logistical arrangements pertaining to his former position. This was a secondment. Apparently, the secondment was to Shomet Construction. The latter thereafter issued a letter terminating respondent’s employment on notice. The appellant’s argument is that Shomet Construction was perfectly entitled to do this as the employer. Respondent’s argument is that he was never employed by Shomet Construction but by Shomet Engineering. The arbitrator had to deal with this issue in her deliberations. Her reasoning in dismissing appellant’s submissions is as follows:

“I agree with respondent (appellant) that the schedules that the applicant attached are out dated but there (they) are (a) proof that applicant was employed by Shomet under their Engineering Section but I cannot find any evidence to show that applicant signed a new contract of employment with Shomet Construction. Respondent could have given applicant an NEC Construction grade but it is not clear how they arrived at that stage considering that applicant raised this grievance with (the) then Human Resources Manager.”

Mrs. Zimvumi sought to argue before this Court that the arbitrator should have called on the appellant to produce evidence before her to show that there was a contract of employment between respondent and Shomet Construction. It is trite that in litigation, he who alleges must prove. It was incumbent on the appellant to show that respondent was employed by Shomet Construction. One of the Terms of Reference before the arbitrator was that the arbitrator was to determine:

“Whether or not the applicant was working under Engineering or Construction Industry.”

Clearly, the appellant was aware that proof that respondent was working under the Construction Industry was required. Appellant did not produce such proof. The arbitrator also stated as much when she pointed out that appellant had not produced any contract of employment to show that respondent was employed under the Construction Industry.

In Peter Mufunda vs Zimbabwe Energy Regulatory Authority SC 9/16, UCHENA JA confirmed the decision of the Labour Court. This was a decision by MAXWELL J. As regards the issue of secondment, the Learned Judge of the Labour Court had this to say:

“The Oxford Dictionary defines secondment as a temporary transfer. In other words an employee on secondment remains the employee of the original employer (seconder) during the period of secondment.

The Industrial Court of Malaysia in the case of Bank of Simpanan Nasional Finance Bhd & Anor vs Omar Hashim (2002) 1 ILR 272 (Award No. 1013 of 2005) explained the meaning of the term ‘secondment’ as follows:

‘The ordinary meaning of secondment as temporary transfer has on the face of it the connotation that the employee is subject to recall by his employer. So he is not a permanent employee of the other.’

The same court in Come Services Asia Pacific Region, Miri vs Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of temporary transfer stating:

‘Therefore so long as the contract is not terminated, a new contract is not made and the employee continues to be in the employment of the original employer. Even if the employer orders the employee to do certain work for another person, the employee continues to be in his employment.’”

It was stated in that judgment that the employer where the employee is seconded may pay wages to the employee during the period when he/she is so hired, but the employee still remains contracted to the seconder.

In casu, respondent was seconded to the appellant. Respondent’s contract with Shomet Engineering was not terminated. Appellant assumed the payment of respondent’s wages. Appellant did not enter into any contract with the respondent. Can it be said that the arbitrator misdirected herself in stating that she had jurisdiction to hear the matter? I do not think so. As stated in precedent, there has to be something which shows that there was a gross misdirection. In the celebrated case of Barros & Anor vs Chimphonda 1999(1) ZLR 58 (S) GUBBAY CJ (as he then was) had this to say at page 62 G-H:

“These grounds are firmly entrenched. It is not enough that the appellate court that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

I am of the considered view that the arbitrator’s decision cannot be interfered with. Appellant has failed to demonstrate that there was any gross misdirection in the findings of the arbitrator.

The appeal is accordingly dismissed with costs.

MURASI J____________________

HOVE J_____________________		I agree

RUTH ZIMVUMI LEGAL PRACTICE-	Appellant’s legal practitioners

Respondent’s legal practitioners