Simbarashe Zinhumwe v Environmental Management Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/290/13
HELD AT HARARE 20 JUNE 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE     	JUDGMENT NO LC/H/290/13

HELD AT HARARE 20 JUNE 2013  	       	CASE NO LC/H/862/12

In the matter between :-

SIMBARASHE ZINHUMWE 					Appellant

And

ENVIRONMENTAL MANAGEMENT AGENCY			Respondent

Before The Honourable P Muzofa, President

For Appellant		C Matanda (Trade Unionist)

For Respondent		Mr G Chingoma (Legal Practitioner)

MUZOFA, P:

This is an appeal against an arbitration award made in favour of the respondent.

The appellant was employed by the respondent company stationed at Beitbridge border post. It was alleged that during the course of his duties respondent cleared on behalf of the respondent certain motor vehicles without payment of the requisite fees to the Respondent contrary to laid down procedures. He was charged and appeared before a disciplinary committee, which found him liable and subsequently dismissed. By letter dated June 13 2011 Appellant was advised of the outcome of the disciplinary hearing. In the same letter he was advised that he may appeal against the said decision if he so wished within seven days. On the 15th of June 2011 appellant wrote a letter to the respondent company marked EMA 2 reproduced below

“Subject – Appeal against unfair dismissal from duty’

I write to appeal against the unfair dismissal from duty by EMA Disciplinary hearing committee which was held on the 7th of June 2011 on a letter dated 13th June 2011.

Reasons for appealing will be availed when minutes of the proceedings are availed.”

The appellant alleged he filed the grounds of appeal on the 20th of June a point that was disputed by the respondent .Appellant alleged then that the respondent did not deal with the appeal until the appellant referred the matter for conciliation. The conciliation failed and the matter was referred for arbitration. The arbitrator made a finding in favour of the respondent on the basis that there was no appeal before the respondent. The appellant then appeals against that award on the following grounds:-

The arbitrator erred and misdirected himself at law in ruling that the appellant did not appeal internally on time and there was no appeal at all when in actual fact appellant noted his appeal in time

The arbitrator erred on a question of law in failing to consider that where a person noted an appeal without filing the grounds of appeal the other party has a duty to remind the other party to file his grounds of appeal before dismissing the appeal.

The arbitrator erred at law in ruling that appellant has waived his right to appeal internally when in actual fact he has not.

The arbitrator erred in determining appellant’s case on technicalities rather than on merits.

The grounds of appeal are dealt with separately.

1. That the arbitrator erred and misdirected himself at law in ruling that the appellant did not appeal internally on time and there was no appeal at all when in actual fact appellant noted his appeal in time.

The Respondent submitted that this ground of appeal is a factual ground and therefore it should be dismissed. It is trite law that in terms section 98(10) of the Labour Act this court has jurisdiction to hear an appeal against an arbitrator’s order on a point of law. Where the appeal is based on factual grounds this court’s powers on appeal are laid down in the case of Nyahondo v Hokonya and others 1997 (2) ZLR 475 (SC) where the court stated that

“An appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

Clearly the question whether the appellant filed his appeal within the set time limit is a question of fact. The arbitrator considered the facts that were before him and concluded that there was no appeal before the appellant. Since this is a factual ground the question which this court has to address is whether the arbitrator’s decision was so outrageous to merit this court’s interference.

It is not in dispute that in the letter dated June 13, 2011 the Appellant was advised that he may appeal against the decision within seven days to an appeals officer. In line with the information given the appellant wrote a letter to the respondent indicating that he was appealing against the decision of the disciplinary committee to dismiss him. This letter was written and filed to the respondent within the envisaged seven days .The letter provides evidence that the Respondent was aware that the letter on its own did not constitute a proper appeal since it did not have the grounds of appeal. For the letter also indicated that the reasons for the appeal will be submitted. It is not in dispute that the appellant was eventually served with the record of the disciplinary committee although there is no evidence filed of record showing the date Appellant was served. It was appellant’s contention that he eventually filed the grounds of appeal; the document was produced by consent before this court.

Although the grounds of appeal were produced by consent the respondent contended that the document was not filed with the respondent to form part of the said appeal. The grounds of appeal do not bear a date stamp from the respondent company as proof of receipt. The appellant did not explain why the grounds of appeal were not date stamped as proof that the appellant indeed was served with the grounds of appeal. The respondent denies that the grounds of appeal were furnished to the appeals officer. In any event if indeed appellant filed the grounds of appeal its second ground of appeal defeats the first ground of appeal .The second ground of appeal amounts to an admission by the appellant that the grounds of appeal were not filed. The second ground of appeal faults the arbitrator for having failed to find that the respondent had a duty to remind the appellant to file the grounds of appeal. This court dismisses the appellant’s assertion; he did not file the grounds of appeal as he wants this court to believe. What remained before the appeals officer was the letter of the 15th of June 2011.

The next issue to consider is whether the letter which was before the respondent was an appeal. This court is persuaded by the submissions made on behalf of the respondent that this letter does not constitute an appeal.

In S v Jack 1990 (2) ZLR 166 (SC) it was held that a notice of appeal without meaningful grounds of appeal is not a notice of appeal and cannot later be amended. If the notice of appeal is a nullity and the time for noting an appeal has lapsed the right to appeal must be deemed to have lapsed. In the case of S v Kondoni 1982 (2) SA 528 (SC) the court held that there was no appeal before it where the notice of appeal was filed without grounds of appeal. Both cases relate to criminal matters where there are rules governing the filing of appeals, however l believe to the extent that there should be grounds of appeal before an appeal is heard the authorities are applicable in a case such as the one before this court. Therefore there was no appeal before the respondent. The arbitrator did not err on this aspect.

The respondent also argued that in terms of section 8(6) of S.I 15/2006 the appellant was out of time to file a grievance with a labour officer. This provision is not applicable in this matter. This is so because as far as the appellant was concerned the respondent had not made a decision so there was no date from which the seven days applicable can be counted from.

The arbitrator’s finding cannot be faulted his decision was not outrageous this ground of appeal fails.

2. Whether the arbitrator erred by making a finding that the respondent had no duty to remind the appellant to file his grounds of appeal.

There is no legal principle that requires the respondent to remind the appellant to file the reasons if anything this would be out of courtesy. Appellant was unable to cite any legal basis for this assertion it was just a bare averment. As submitted by the respondent’s legal representative the appellant is the one who had a duty to file the reasons as he had promised in his letter of the 15th of June. This ground of appeal is unsubstantiated and therefore it is also dismissed.

3. That the arbitrator erred at law in ruling that appellant had waived his right to appeal internally when in actual fact he had not.

The appellant sought to enforce his rights after nine months by approaching a Labour officer. It has been held that, ‘neglect to enforce a right timeously may under certain circumstances have the same effect as a waiver of it’ see Chidziva and Others v Zisco Steel Co.Ltd 1997 (2) 368 (S).It is this court’s view that in this case the appellant’s conduct in delaying to enforce his rights can be described as failing within the circumstances that classify his conduct as a waiver.

Therefore this ground of appeal also fails.

4. That the arbitrator erred in determining appellant’s case on technicalities rather than on merits.

The arbitrator’s terms of reference were

Determine whether or not the employee was unfairly dismissed;

Whether the employee lodged an appeal in terms of S.I. 15 of 2006;

Whether the employee was doing duties of a technician and scientist;

Determine an appropriate remedy.

The award filed of record shows that the arbitrator made a finding in respect of issue (ii) and issue (iii) of his terms of reference. There is no explanation why the other two issues were not dealt with. The respondent’s legal representative submitted that parties had agreed to dispose of issue (ii) first. This was disputed and therefore this line of submission was abandoned. That as it may the arbitrator in making his decision was guided by the terms of reference. Indeed dealing with item (ii) and the subsequent finding disposed of the matter and therefore there was no need to deal with the other issues. In essence that finding means the appellant did not challenge his dismissal before the respondent therefore he cannot raise the other issues against the same order he failed to challenge.

Accordingly it is ordered that:-

The appeal being devoid of any merit be and is hereby dismissed, each party to bear its own costs.

Zimbabwe Energy Workers Union,  Appellant’s Representative

Dube, Manikai & Hwacha,  Respondent’s Legal Practitioners