Surface Investments (Private) Limited v Johannes Chidzambwa & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/298/13
HELD AT HARARE 16TH MAY 2013
CASE NO
JUDGMENT NO LC/H/298/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/298/13

HELD AT HARARE 16TH MAY 2013		    CASE NO LC/H/614/12

SURFACE INVESTMENTS						Appellant

(PRIVATE) LIMITED

JOHANNES CHIDZAMBWA					1st Respondent

EDMORE RUTANHIRA						2nd Respondent

Before The Honourable G Musariri, President

For Appellant		N Mashizha, Attorney

For Respondents		P Chakabuda, Unionist

MUSARIRI, G:

On 27th July 2012 the Honourable L. Chibvongodze made an arbitration award.  In terms thereof she ordered Appellant to reinstate Respondent’s employment.  Appellant then appealed to this Court against the award.  The grounds of appeal were two-fold namely,

“1.	The Arbitrator erred at law in determining a matter which she had no jurisdiction to determine upon.

2.	The Arbitrator erred grossly both on the facts and at law in interfering with the penalty imposed by the Appellant, which penalty was an exercise of discretion.”

I consider that the 1st ground cannot be properly raised by way of an appeal.  Whether or not the arbitrator had jurisdiction to deal with the matter is a point of procedure.  It does not deal with the substance or merits of the matter.  As such it should have been raised by way of review.  I hereby wish to remind litigants, including attorneys, that this Court now has powers of review.  Section 89 (1) (di) of the Labour Court Chapter 28:01 empowers the Court to

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters,”

As regards the 2nd ground of appeal I consider that Appellant misunderstood the arbitration award.  It construed the award to affirm the guilty verdict but to reduce the dismissal penalty to a warning.  Hence the ground focused on the penalty alone.  A closer reading of the arbitrator’s analysis of evidence and findings shows otherwise.

The arbitrator found as follows,

“A close analysis on the witnesses’ statement shows that even though they were on quite a close range to the hydrant valve, they did not see exactly what transpired hence they mention of several names instead of one.  I am of the view that Respondent erred, when he proceeded to reinstate 6 of the claimants and dismissing 2 of the claimants.  The Respondents due to lack of overwhelming evidence was supposed to be consistent in the application of his decisions to such offences of a similar nature…  The decision should have been the same for all claimants due to lack of evidence.”

As for the other charge the Arbitrator concluded as follows,

“The consistency of claimants’ answers to who told them to report to work early should show that they were under a lawful order from a contractor who they had been asked by their employer to help therefore the second charge should not stand.”

(The underlining for emphasis in both quotations is mine.)

The Arbitrator basically found that Appellant failed to prove its case against Respondents.  However instead of substituting a verdict of not guilty, she tampered with the penalty.  This was on the basis that all the accused employees faced the same case and therefore Respondents should have been given final warnings as happened to their colleagues.  Evidently the Arbitrator conflated the two phases of verdict and penalty.   I consider that what she intended to do, which is consistent with her findings, was to say that in the alternative Respondents should have been penalised with final warnings.  That is the only logical way of matching her findings to the award.  Appellant did not challenge the findings pertaining to the proof of the charges. It confined itself to the penalty.  Thus the findings having being unchallenged, there was no need to deal with the arguments about the penalty.

Wherefore it is ordered that,

The appeal is hereby dismissed.

G. MUSARIRI

PRESIDENT