Tendai Kuseri v Colbro Transport

IN THE LABOUR COURT OF ZIMBABWE              JUDGMENT NO. LC/H/127/2013

Held at Harare on 19 February 2013           CASENO.LC/H/482 /2012

In the matter between



TENDAI KUSERI                                 -Appellant



And



COLBRO TRANSPORT                              - Respondent



Before The Honourable L. Kudya, President

For Appellant        : In Person

For Respondent       : Mr W. Mushoriwa (Human Resources Manager)


KUDYA, L


      Appellant is appealing against the decision of the arbitrator who upheld

his dismissal by the Respondent company which he used to work for.



      The fact of the case are that Appellant who was in the Respondent’s

employ as a fleet manager was summarily dismissed by the Respondent for

contravening the Transport Industry Code of conduct, it being alleged that he

had committed acts of gross negligence contrary to expectation of his duties.



       In particular, it was alleged that he had signed for certain toll gate fees

and subsistence fees for the drivers who were under his control on the pretext

that the money would get to the intended beneficiaries but it was discovered

that in some of the instances the money never got to the said beneficiaries.

                                                                                 1
                                                       JUDGMENT NO. LC/H/127/2013

      He was suspended, charged with misconduct and duly dismissed by the

Respondent .He appealed within the internal structures but because the appeal

was not concluded within the stipulated time frames his matter ended up at the

Labor officer for conciliation and subsequently at arbitration.



      At arbitration, the arbitrator concluded that the Respondent had indeed

made out a good case against the Appellant based on the exhibits which were

tendered on the matter and now filed of record. He thus found no fault with the

Appellant’s dismissal and accordingly confirmed it.



      Aggrieved by the arbitrator’s decision the Appellant has now appealed to

this court to set aside the arbitrator’s decision and order that he be reinstated

to his original position without any loss of salary or benefits. If reinstatement is

no longer viable, he prays for an alternative order for damages in place of

reinstatement .It is this appeal which is addressed by this judgment.



The grounds of appeal which the Appellant relies on are set out in these words


       “the employer did not comply with the statutes of the code of conduct (ii ) the employer
      committed unfair practice .
      (iii)the arbitrator exercised his mind to make a decision”


He then goes on to refer the court to the amplified grounds as contained on an

attachment to the form LC3. In summary form, the attachment raises the

following issues:


                                                                                             2
   1. There is in this matter a misdirection and failure to properly determine

      the matter which warrants interference by a Superior Court

   2. The arbitrator failed in concluding that the Appellant’s job was properly

      terminated yet the evidence favoured that he be reinstated. In essence,

      there was no evidence which favoured the dismissal finding.              The

      evidence tendered did not show that there was any toll gate money

      which did not get to the intended beneficiaries.

                                              JUDGMENT NO. LC/H/127/2013



   3. There were procedural irregularities which vitiated the decision to dismiss

   the Appellant in that, the arbitrator exhibited bias as he dealt with the

   matter. The disciplinary hearing chairperson had played both roles of

   prosecutor and judge in the same case. It was imperative for the employer

   to see to it that the matter had been dealt with in a substantively and

   procedurally fair manner. There were no reviews of submission by parties

   hence it was clear that Chairperson of the Disciplinary Committee was

   biased and had predetermined the matter.



   4. The anomalies about the money complained of by the Respondent were

   not brought to Appellant’s attention timeously thus suggesting that the case

   was created to expedite his dismissal.

   5. Appellant was verbally dismissed on 10 November 2010 by his boss on

   threats of being taken to the police if he did not resign. The subsequent

   letter of suspension was defective as it did not particularize the allegations.



In response to the notice of appeal the Respondent maintained the following:




                                                                                     3
       1. There was no misdirection on the part of the arbitrator on all the facts

      which were placed before him.

      2. The arbitrator concluded that the dismissal was in order based on clear

      evidence which was tendered and there is no reason to interfere with

      that finding.

      3. At the outset, the appeal is improperly before the court for want of

      cogent grounds of appeal.

      4. There is non-compliance with the rules of court and the law which

      requires that an appeal to the Labour Court from the arbitrator shall only

      lie on points of law. Since the appeal is premised on attacking the

      findings of fact by the arbitrator and there is no evidence of a gross

      misdirection on the evidence the appeal should therefore fail.



                                              JUDGMENT NO. LC/H/127/2013

      5. Appellant has raised procedural issues in an appeal .These should be

      appropriately addressed by review proceedings which are provided for in

      the Labour Court rules.



In the main, the Respondent maintains that the Appellant has not made out a

good case for his appeal and it should therefore fail.



      The law pertaining to appeals from arbitration is set out in section 98(10)

of the Labour Act which indicates that such appeals shall only lie to this court on

questions of law.



      What is a question of law and fact has been set out clearly in the cases of

Sable Chemical Industries Ltd vs David Peter Easterbrook SC 18/10 and

Norman Matsuta and Tonderai Katsande vs Cargar Pvt Ltd SC 47 /09


                                                                                  4
      The first question to be resolved by this court is whether or not there is

any appeal before it. If there is, the next question would then be whether the

Appellant has placed before the court sufficient grounds for it to interfere with

the arbitrator’s decision.



      The grounds of appeal show plainly that the appeal is on questions of

fact. This is not in line with what is required for purposes of hearing appeals

from arbitration in the Labour Court.



       The court is alive to the fact that the parties before it are not legal

scholars and may thus not have a cogent appreciation of the rules of court and

other legal niceties which are attendant to court proceedings.



      To that extent, the court can condone the manner in which the grounds

of appeal have been couched and conclude that Appellant wants to tell the

court that



                                              JUDGMENT NO. LC/H/127/2013

the arbitrator grossly erred in his assessment of the evidence before him to the

extent that the misdirection can be elevated to a point of law .



      A reading of the whole record of proceedings unfortunately does not

support this fact. The arbitrator’s award shows that his conclusions were drawn

mainly from the documents which were tendered by the Respondent and

accepted by the Appellant in the presence of his Legal Practitioner.




                                                                                5
      It is also clear from the record that the Appellant conceded that he did

sign for and received the money in question but maintains that he passed it on

to its intended beneficiaries. This is an issue which centers on the Appellant’s

word against that of the intended beneficiaries. The Disciplinary Committee

weighed such evidence and accepted the version of the intended beneficiaries

as opposed to that of the Appellant.



      The conclusions in question are purely factual findings. The law is settled

about when such can be upset by a superior court. This can only happen where

there is evidence of gross misdirection on the facts by the lower tribunal See

the cases of Nyahondo vs Hokonya and others 1997( 2 )ZLR 475 (SC) and AG

vs Howman 1988 (2) 402 (SC)



      In the light of the above cases this court can only interfere with the

exercise of discretion by the arbitrator and the disciplinary committee if it is

shown that the exercise of same was malicious or capricious.



      Apart from the Appellant’s mere say so, there is nothing on the record

which suggests such caprice or bias. This court has no legal basis for interfering

with the factual findings which were made by the arbitrator and the Disciplinary

Committee.




                                             JUDGMENT NO. LC/H/127/2013

      The court agrees with the Respondent that Appellant has also fallen into

the error of seeking a review of the matter in an appeal which is procedurally

improper where separate procedures for this are provided by the law.


                                                                                 6
       Even if the court were to still indulge the Appellant and condone his ill

use of the procedure the difficulty which the court still has is that there is

nothing on the face of the submissions before it to conclude that aspect.



      In any event, a reading of the Respondent’s submissions shows that it

was primarily addressing the appeal. It would therefore be irregular for this

court to make findings on issues which the parties have not adequately dealt

with and which in any case are improperly before it.



      In the light of the above, it is clear that the Appellant failed to make out a

good case for his appeal. The appeal should accordingly fail.



It is ordered as follows:



      1. The appeal being without merit be and is hereby dismissed.

      2. The arbitrator’s decision is to stand.

      3. No order as to costs




L. Kudya ___________________

President Labour Court




                                                                                   7