Walter Nyabadza v Harare Institute of Technology

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/775/14
HELD AT HARARE 4TH AND 21 NOVEMBER
JUDGMENT NO LC/H/775/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/775/14

HELD AT HARARE 4TH AND 21   NOVEMBER  		     CASE NO LC/H/450/2014

2014

In the matter between:-

WALTER NYABADZA					Appellant

And

HARARE INSTITUTE OF TECHNOLOGY			Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant			Mr A Muchandiona (Legal Practitioner)

For Respondent			Mr R.G. Zhuwarara (Legal Practitioner)

MURASI, J:

Appellant was employed by the respondent.  It is alleged by appellant that he was initially employed on probation for a period of three months with an understanding from the respondent that he would be employed on a permanent basis on expiry of this period.  This did not materialise and appellant signed two further fixed term contracts on the understanding that these periods would be taken into account when the employment contract was eventually finalised.  Appellant alleges that he thereafter left employment in September 2011.   The dispute was subsequently referred to arbitration.  The Arbitrator found in favour of respondent.  Appellant has approached this Court for relief.

Appellant’s grounds of appeal are couched as follows:

The Arbitrator erred and misdirected herself on a point of law in failing to appreciate that section 12 B (3) (a) of the Labour Act [Chapter 28:01] was enacted to provide a remedy to employees who are induced to prematurely terminate their contracts of employment by the unfair and intolerable labour practices of their employers.  This is exactly what happened to the appellant in this matter.

The Arbitrator’s factual findings were so grossly unreasonable in their defiance of logic that no reasonable tribunal which had applied its mind to the matter before it could have made such a finding.  In this regard it is submitted that the evidence submitted to the tribunal clearly showed that employees in the appellant’s grade were never employed on fixed term contracts and that it was never intended by the parties to enter into fixed term contracts.  The Honourable Arbitrator’s reasoning that letters written to third parties confirming the appellant’s permanent employment status were of no evidential value is grossly unreasonable and lacks both legal and factual support.

Appellant’s Counsel submitted that he largely abided by the Heads of

Argument filed of record.  It was stated on behalf of appellant that the employment relationship between the parties was governed by the fixed term contracts inspite of the evidence of the letters written to the banks.  It was further argued that the Standard Terms of Contract submitted should not have been ignored by the Arbitrator as they outlined the procedure respondent takes when engaging personnel.  Appellant’s Counsel further submitted that appellant left employment without giving notice as respondent had made his continued employment intolerable.

Respondent’s Counsel submitted that the findings of the Arbitrator were proper.  It was argued on behalf of respondent that appellant had not placed sufficient evidence before the Arbitrator to prove his claim.  It was stated on behalf of respondent that appellant’s behaviour was inconsistent with that of a person employed on a permanent basis.  It was further submitted that appellant was a lawyer who was supposed to appreciate what fixed contracts were and what their implications were.

Precedent has shown that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of gross misdirection.  (See Innscor Africa (Pvt) Ltd v Letron Chimoto S 6/2012; Hama v NRZ 1996 (1) ZLR 664 (SC)).  It is pertinent to consider the Arbitrator’s decision in light of appellant’s grounds of appeal.  The appellant’s first ground of appeal is that the Arbitrator failed to find that the actions of respondent made the employment conditions intolerable leading to appellant’s premature termination of the employment contract.  The Arbitrator’s finding in this regard is as follows:

“As correctly argued by the respondent, the claimant’s claim for unfair dismissal on

the basis of legitimate expectation is far-fetched as the grounds for this claim do not meet the requirements prescribed under section 12 B (3) (a) as read with section 12 (2) of the Labour Act and section 5 (d) of Statutory Instrument 15 of 2006.”

The  Arbitrator made a finding of fact that appellant’s case did not meet

the criteria required in section 12 B (A).  As argued by respondent’s counsel, appellant was supposed to produce evidence which would prove that his continued employment by the respondent had become intolerable.  The evidence placed on record was of three (3) fixed term contracts which had been signed by the appellant.  Was this proof that his continued employment had become intolerable?  It is trite that he who seeks a remedy must prove the grounds therefore.  As stated in Astra Industries Ltd v Peter Chamburuka S 27/2012:

“The position is now settled in our law that in civil proceedings a party who makes a

positive  allegation bears the burden to prove such allegation.”

The question is, did the appellant discharge the onus of proving that the respondent had created intolerable working conditions.  I think not.  The Court inquired from appellant’s Counsel as to why these allegations were not contained in appellant’s Memorandum to the Registrar.   The response was that is was a matter which had been discussed with the Registrar and an agreement arrived at that appellant would be employed as a Consultant.  The Court finds the explanation unconvincing.  It would be reasonable to expect a disgruntled employee to bring to the employer’s attention that the conditions being offered had become intolerable.  No such evidence was placed before the Arbitrator.  The Court finds that in the absence of evidence adduced by the appellant, the Arbitrator could not have found in his favour.

The second ground of appeal relates to findings made by the Arbitrator on the documentary evidence produced.  The documents referred to by appellant are letters written to banking institutions alleging that appellant was permanently employed by respondent.  These letters were written by respondent’s Salaries Accountant.  These letters implore the addresses to assist the appellant.  As pointed out by respondent’s Counsel, these latters do no emanate from the Human Resources Department and the motive for the letters would be unknown. The letters are addressed to third parties and not appellant.  There is no document that is addressed to the appellant showing that he is permanently employed by the respondent.  The Arbitrator cannot be faulted for making the finding that he did on this point.

Appellant further argued that the Arbitrator ignored the Standard Form Contract that was produced in evidence.  Appellant laid particular emphasis on the fact that that contract enjoined the respondent to either confirm a probationary contract after the stipulated period or confirm it.  Respondent’s Counsel argued that appellant could not state that because there was no termination then the confirmation was implied.  It was submitted that the confirmation required a positive act.  In actual fact, the events militate against a finding of a confirmation of such probationary period.  One would have expected that this reference would be made in the fixed term of contract signed on 1 April 2014.  It was not.  It was not also referred to in the final contract.  As argued by respondent’s Counsel, appellant is a lawyer who is aware of the caveat subscripto rule.  Appellant was supposed to have ensured that what the Registrar had allegedly undertaken to include in the contract was in fact included.  Did the Arbitrator misdirect herself in making the finding she did on this point?  I think not.  I associate myself with the words of NDOU J in Jona Ndalama v Chief Superintendent Happymore Sigauke and Commissioner- General  HB 153/11 where he stated thus:

“There has to be something grossly irregular in the proceedings to warrant such interference.  The appellate court must never overlook that the trial officer’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective.”

The Court is of the considered view that the findings of the Arbitrator

are unassailable.

In conclusion, the Court finds the appeal to be devoid of merit and it is accordingly dismissed.  The Court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of Honourable P Mutsinze dated 13 April 2014 is hereby upheld.

There is no order as to costs.

Danziger & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners