Vongai Magadzire v Baines Imaging Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/606/2016
HARARE, 2 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/606/2016

HARARE, 2 JUNE 2016					    CASE NO. LC/H/70/16

AND 7 OCTOBER 2016

In the matter between:-

VONGAI MAGADZIRE					Appellant

And

BAINES IMAGING GROUP				Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr T. Garabga (Legal Practitioner)

For Respondent		Mr T J Mafongoya (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Honourable Arbitrator Richard Masinire.  The arbitrator ruled that the dismissal of the appellant was fair.

The background facts of this matter are that;

Appellant was employed by the respondent as its Operations Manager at Avenues Clinic.

On the 4th of June 2015 appellant was suspended from work without salary and benefits.

Appellant was eventually charged with theft or fraud in terms of Section 4 (a) “Any act of conduct on omission inconstant with the fulfillment of the express or implied conditions of his or her contract”. The charges were based on allegations that the appellant had encashed leave days in excess of the available leave days and also that she had defrauded the company of       US$5 520,00.

On the 12th June 2015 the appellant appeared before a Disciplinary Authority to consider the charges.  She was found guilty and dismissed from employment.

On 29th Jun 2015 the appellant appealed to the Appeals Officer.  The Appeals Officer upheld the decision of the Disciplinary Authority and upheld the decision of the disciplinary Authority.

The appellant then referred the matter to the Labour Officer and eventually to the Arbitrator.  On the 11th January 2016 the Arbitrator found in respondent’s favour and the appellant was dismissed from employment.  She has, filed an appeal against this decision.

The grounds of appeal before this court are as follows;

The Arbitrator erred by stating that the appellant failed to prove her innocence and yet an employer can only be found guilty where the employer has discharged the onus of proof.

The Disciplinary Authority failed to pinpoint as to what was proved on a balance of probabilities.

The Arbitrator erred by ruling that the affidavit by the former Regional Accounts Administrator was inadmissible.

The Arbitrator erred by overlooking the fact that the appellant had registered a complaint concerning minutes of the hearing before the Disciplinary Authority. The minutes were doctored to exclude all that appellant has stated in respect of the respondent’s policies on overtime and conversion of the leave days.

The Arbitrator erred by concluding that the charges of misconduct against the appellant had not prescribed.

The Arbitrator erred by failing to find evidence that on count 7 the charge for an offence that arose in 2013 was dropped.

The respondent in response has raised a point in limine to the effect that the appeal does not raise any question of law.  It is this point in limine that I am going to deal with in this judgment.

To start with the appeal does not leave a prayer which means that the appeal is defective.  In the case of Matanhire v BP Shell Marketin Services (Pvt) Ltd SC 113/2004 the court held that;

“Nullity cannot be amended in Jansen v Acavalos 1993 (1) ZLR 216 Korsah JA at 22 or said that the reason why a fatally defective notice of appeal could not be amended was that: it is not only bad but incurably bad.”

This appeal is incurably bad because it does not have any prayer.

The case of Muzuva v United Botters (Pvt) Ltd 1994 (1) ZLR 217 discussed what constitutes a question of law as follows:-

“… the term question of law is used in three distinct though related senses.  First it means a question which the law itself has authoritatively answered to the exclusion of the right 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 law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

And third, any question which is within the province of the judge instead of the jury is called a question of law.  This decision of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”

The grounds of appeal are attacking the factual findings of the Arbitrator.  There is nowhere where it is indicated that the factual findings are so unreasonable to the extent that no reasonable person would come to such a conclusion.  Ground 3 and 4 are mere narratives which do not raise any question of law.

Section 98 (10) of the Labour Act states 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.”

In the absence of questions of law in the grounds of appeal this court finds that there is no appeal before this court.

To that end therefore this court orders as follows;

The point in lime be and is hereby upheld.

Appellant to pay costs.

Garabga, Ncube and Partners, appellant’s legal practitioners

Matsikidze and Mucheche, respondent’s legal practitioners