University of Zimbabwe v Patience Mukwambo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/737/13
HELD IN HARARE, 7 NOVEMBER, 2013 &
31st JANUARY, 2014
CASE NO. LC/933A/12
JUDGEMENT NO. LC/H/737/13
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGEMENT NO. LC/H/737/13

HELD IN HARARE, 7 NOVEMBER, 2013 &		           CASE NO. LC/933A/12

31st JANUARY, 2014

In the Matter Between

UNIVERSITY OF ZIMBABWE				Appellant

And

PATIENCE MUKWAMBO					Respondent

Before The Honourable E. Makamure,	J

For Appellant	:	Mr S. Zingano (Legal Practitioner)(with him Mrs Nyamadzi)

For Respondent:  	Mr J. Katsuro (Legal Practitioner)

MAKAMURE J.

This is an appeal against adecision by an arbitrator.Before the merits of the appeal could be argued the respondent raised a point in limine. The respondent argued that the grounds before this Court raise factual issues as opposed to questions of law as provided for in the Labour Act [Cap 28:01] (The Act), Section 98(10) of the Act provides that;

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

The Appellant appeals on the following grounds;

“(a)	The Honourable Arbitrator grossly misdirected herself on a finding of fact which amounted to an error at law ruling that Respondent was entitled to 24 months’ salary as damages in lieu of reinstatement despite her finding to the effect that Respondent had not been mitigating her loss by seeking alternative employment.

(b)	The Honourable Arbitrator grossly misdirected herself on a finding of fact which amounted to an error at law by ruling that Respondent was entitled to 24 months’ salary on the basis that claimant’s area of specialisation was unique and could only be offered by Appellant when in fact Respondent did not have a foundational degree or qualification to teach in the Appellant’s department where she was working.

(c)	That the Honourable Arbitrator grossly misdirected herself on a finding of fact which amounted to an error at law by holding that the Respondent’s salary including benefits was USD2 905.00 when no evidence was led by the Respondent on the issue of benefits and consequently Respondent’s salary was USD1 472.86 despite that this finding was not supported by the evidence before her.”

The term “question of law’ was defined by the Supreme Court in the case of Muzuva v United Bottlers (Pvt) Ltd. 1994(1) ZLR in the following manner:

“the term ‘question of law’ is used in three district though related senses.  First it means ‘a question which the law itself has authoritatively answered to the exclusion of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second it means a question of what the law is. Thus, an appeal on a question of law means an appeal for which the question for argument and determination is what the true rule of law is in the matter. And third any question which is within the province of the Judge instead of the Jury is called a point of law……………….” “(emphasis added)”

See also Mutsuta and Anor vs. Cagar (Pvt) Ltd SC 47/09.

Mr Zingano who appeared on behalf of the respondent submitted that there was gross misdirection by the Arbitrator in the factual findings and therefore the grounds raise issues of law. Mr Zingano argued that the factual findings by the learned Arbitrator were unreasonable making the resultant decision appealable.

I will now deal with grounds of appeal starting with the third ground (c). It must be observed that the Arbitrator was presented with evidence in the form the respondent’s payslip. Thereafter the Learned Arbitrator made other factual considerations until the figure of USD 1 472.86 was arrived at. I do not see any misdirection or unreasonableness in how the learned Arbitrator arrived at the findings. Surely an appellate court cannot interfere with such a finding. Equally the second ground, (b),was arrived at after makingconsiderations which resulted in the Arbitrator awarding twenty-four (24) months instead of sixty (60) months’ salary.

It is trite that after dismissalan employee is obliged to mitigate their loss. This is a long standing principle enunciated in Ambali vs. Bata Shoe Company LTD 1999 (1) ZLR 417 (S). However it is the employer who has the duty to show that the dismissed employee earned or should have earned an income (see Godfrey Nyaguse vs. Mkwasine Estate SC 34/2000). The respondent did not discharge its onus in that respect. This means that there is no merit in the first ground if appeal. It is trite that a ruling on damages is not appealable. In Leopard Rock Hotel Co. (Pvt) Ltd. vs. Van Beek 2000 (1) ZLR 251 (s) the Supreme Court had this to say:

“A ruling ……………… on damages is a ruling on facts and thus not appealable unless it can be categorised as wholly unreasonable.”

In the present case I am not able to say that the findings by the Arbitrator are wholly unreasonable. Neither can I say that the learned Arbitrator was misdirected as to the law applied to assess what is due to the respondent.

In the circumstances I find that there is merit in the point in limine raised. The point in limine is upheld.

The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Ziumbe and Partners, for the appellant

Zimbabwe Labour Centre, for the respondent