Tapiwa Kunyepa v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/504/2016
HARARE, 27 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/504/2016

HARARE, 27 JULY 2016			          	       CASE NO. LC/H/198/16

AND 9 SEPTEMBER 2016

In the matter between:-

TAPIWA KUNYEPA					Appellant

And

OK ZIMBABWE LIMITED				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Ms N. Tangawabaiwa (Trade Unionist)

For Respondent		Mrs R. Matsika (Legal Practitioner)

MAXWELL, J

At the hearing of this matter I dismissed it and indicated that reasons would follow.  These are they.

This is an appeal against an arbitral award which dismissed appellant’s claims against the respondent.  Appellant was employed by respondent from 2 May 2009 to 7 April 2015 when he was dismissed following charges of misconduct.  Appellant was a till operator.  After his dismissal appellant made a claim of alleged under payment of wages and non-payment of overtime.  The arbitrator dismissed the claim on the basis that appellant had failed to prove his claim.  Appellant was disgruntled and filed this appeal.  The grounds of appeal are;

The honourable arbitrator grossly misdirected herself on a point of law when she held that appellant failed to prove his claim of overtime in total disregard to the evidence that was before her which evidence was in the form of a detail times (sic) that appellant was working in excess of the stipulated times.

The honourable arbitrator further misdirected herself on a question of fact which misdirection was so gross to amount to a point of law in holding as she did that appellant failed to provide the registers when in fact it was the responsibility of the respondent to produce such registers as documents kept by the employer in terms of the Labour Act Section 125.

Registers as a matter of fact are kept by the respondent and it boggles the mind how the arbitrator expected appellant keep (sic) custody of such documents which are kept by the employer.

The honourable arbitrator erred at law in assessing the evidence that was before her when she proceeded to dismiss appellant’s claim of overtime without any evidence placed before here (sic) by the respondent to rebut the claim by the appellant.  Respondent had the onus to furnish the arbitrator with evidence in rebuttal to the claim by the appellant.  Such evidence was never placed before the arbitrator and the finding of the arbitrator in the circumstances is bad at law.

The arbitrator further erred at law in holding as she did that appellant never performed the duties of a documents controller relying on a contract of employment when regard was so the facts (sic) and evidence at respondent’s Avonlea branch actually proved that appellant performed the duties of a documents controller.  Respondent being the one in custody of the registers and the documents that appellant was using as a documents controller was obliged in terms of the Labour Act to produce such records as evidence but despite same being demanded from conciliation stage has never produced such documents.

The finding of the honourable arbitrator in the circumstances was so grossly unreasonable in its defiance of logic such that no reasonable man applying his normal mind to the facts would have arrived at the same decision when it is clear from the facts that appellant proved its (sic) claim of overtime which respondent did not dispute and such hours were actually signed and respondent failed to furnish the Tribunal with any evidential proof to rebut appellant’s claim of overtime.

Appellant prayed for his reinstatement without loss of salary and benefits.  Respondent opposed the appeal on the basis that;

No evidence was placed before the arbitrator regarding the appellant’s claim, save for a schedule that he himself prepared.

The onus was on the appellant to prove his case and such an onus could not be transferred to the respondent.  Appellant was owed 463 hours of overtime which were duly paid.

It is denied that any evidence was given of the allegation that the appellant performed the duties of a documents controller.  The evidence on record actually revealed that appellant underwent training for the position of Assistant Administration Clerk but never performed the role of a Documents Controller.

Appellant failed to prove his case before the arbitrator and the claim was properly dismissed.  In any event the appeal fails to raise questions of law and as such should be dismissed.

The respondent is correct that the appeal fails to raise questions of law.  The appellant’s representative had no meaningful submissions to make.  In trying to assist, the court asked her to address the grounds of appeal on record.  Her response was that she could not do that as she is not the one who prepared the grounds of appeal.  She stated that she was only working with information submitted to her by the client.  Clearly she does not appreciate the reason for her appearing on behalf of appellant.

It is trite that an appeal from an arbitral award must be on a question of law.  Section 98 (10) of the Labour Act [Chapter 28:01] provides that an appeal from a decision of an arbitrator to this court shall be on a question of law.  What constitutes a question of law has been stated in a number of cases as,

a question which the law itself has authoritatively answered;

a question as to what the law is; and

any question which is within the province of the judge instead of the jury.

See Muzuva v United Bottles (Pvt) Ltd 1994 (1) ZLR 214

Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

It has also been stated that a misdirection on the facts which is so unreasonable that no sensible person applying his mind to the facts would arrive at such a decision qualifies as a point of law.  See Reserve Bank of Zimbabwe v Granger ad Another SC 34/2001.  A misdirection on fact has been defined as either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.  See Tichazivana v Trojan Nickel Mine SC 56/03.

An analysis of the grounds of appeal confirms respondent’s submission.  The first ground complains that the arbitrator disregarded the evidence that was before her.  The second ground asserts that it was the responsibility of the respondent to produce registers in terms of section 125 of the Labour Act.  The third ground of appeal is actually a comment following up on the second ground of appeal.  The fourth ground of appeal complains that the arbitrator dismissed the claim when no evidence to rebut the claim was furnished by respondent.  The fifth ground of appeal repeats that respondent had an obligation to produce registers and that the arbitrator was wrong to rely on a contract of employment.  The sixth ground of appeal insists that appellant had proved his claim and respondent did not dispute the claim.  Clearly no question of law is raised in any of the grounds of appeal.

It is interesting that there is a prayer for reinstatement without loss of salary and benefits from the date of dismissal.  The issue of reinstatement was not before the arbitrator.  Pages 38 to 39 of the record of proceedings confirm that appellant was dismissed following disciplinary action.  The reference to arbitration shows that the terms of reference were alleged non- payment of overtime and underpayment of wages.  It is therefore improper for appellant to seek reinstatement in circumstances where his dismissal has not been held to be improper.  Appellant’s representatives in this case leaves a lot to be desired.  There is no merit in the appeal and it cannot succeed.

The following order is therefore appropriate.

The appeal be and is hereby dismissed for lack of merit.

Wintertons, respondent’s legal practitioners