Zimbabwe Broadcasting Corporation (Private) Limited v Benania Shumba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/180/25
HELD AT HARARE 26 MARCH 2025
CASE NO. LC/H/1066/24
IN THE MATTER BETWEEN:-
ZIMBABWE BROADCASTING CORPORATION
(PRIVATE) LIMITED
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 26 MARCH 2025

IN THE MATTER BETWEEN:-

ZIMBABWE BROADCASTING CORPORATION

(PRIVATE) LIMITED

AND

BENANIA SHUMBA

RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Appellant
For the Respondent

MURASI J.,

This is an opposed appeal against the determination of the Labour Officer and the arbitrator dated 4 April, 2023 and 6 September, 2024, respectively.

FACTUAL BACKGROUND

The salient facts culminating into the present appeal can be summarized as follows:

The respondent was employed by the appellant as a director for human resources and administration on a fixed-term contract running effective the 1st of September 2018 to the 31st of August 2023. The appellant terminated the respondent’s contract of employment on notice on the 5th of September 2019. Aggrieved by the termination, the respondent referred the matter to the Labour Officer, citing allegations of unfair labour practices. The Labour Officer ruled in favour of the respondent. The appellant was ordered to reinstate the respondent without loss of salary and benefits or to pay damages for the unexpired term of the contract. Having established that reinstatement was no longer tenable, the matter was referred to arbitration for quantification. The arbitrator awarded a motor vehicle Mazda BT50 to be bought by the respondent at book price, US$371 458.70 as damages for the un-expired term and 23 500 litres of fuel. Aggrieved by both the draft ruling and the arbitrator’s award, the appellant has approached this Court for relief on the grounds set out below:

**GROUNDS OF APPEAL**

“2. The arbitrator erred at law in:

2.1. Exercising jurisdiction over the dispute in circumstances where the matter ought to have proceeded before the labour officer who was already seized with the matter and had issued a draft ruling before the Labour Amendment Act, 2023 came into the force.

2.2. Determining the dispute in the absence of the Minister of Information, Publicity and Broadcasting Services in circumstances where the dispute involves Appellant, an employer which is an entity wholly or predominantly controlled by the State.

2.3. Failing to find, in the absence of any contrary evidence, that Respondent had failed to discharge her duty to mitigate her loss. Consequently, the arbitrator erred in finding that Respondent was entitled to damages and allowances calculated for the entire remaining period of the contract extending from 5 September 2019 to 31 August 2023.

2.4. Finding that the Respondent was entitled to purchase of a Motor Vehicle Mazda BT50 in the absence of any evidence granting her such a right.”

**PRELIMINARY ISSUES**

At the commencement of the hearing, Mr. *Kabuya*, counsel for the respondent, raised a point in *limine*, arguing that the Notice of Appeal in the present matter is defective due to its improper merging of review and appeal issues. The counsel drew the Court’s attention to the specific pages of the Notice of Appeal (pages 3-5) and highlighted grounds 1.1 and 2.1 as examples of this defect. Mr. *Kabuya* submitted that ground 1.1 challenges the issue of the Labour Officer’s jurisdiction, which is a procedural issue and therefore unrelated to the substance or propriety of the decision. Similarly, ground 2.1 challenges the arbitrator’s jurisdiction, which Mr. *Kabuya* argued is a reviewable issue rather than an appealable one. The counsel further emphasized that if the appellant intended to raise reviewable issues, it should have filed a review application simultaneously with the appeal, as provided for under rule 19 of the Labour Court Rules, 2017.


Based on the alleged defect in the Notice of Appeal, Mr. *Kabuya* prayed for the dismissal of the appeal.

Before addressing the point *in limine* raised by the respondent, the Court invited Adv. *Uriri*, counsel for the appellant, to address two additional critical issues. Firstly, regarding the first portion of the appeal challenging the Labour Officer’s ruling from 2023. The Court observed that this is the first appeal against that ruling and in the absence of an application for condonation, that part of the appeal would be deemed improperly before the Court. Furthermore, the Court requested Adv. *Uriri* to address whether the second part of the appeal, relating to the arbitrator’s decision was filed within the prescribed timeframes.

In response to the Court's inquiries, Adv. *Uriri* contended that the ruling issued by the Labour Officer was only a draft and, as such, there was no right of appeal against this draft ruling. Adv. *Uriri* further submitted that the law had changed significantly subsequent to the issuance of the draft ruling, with the enactment of Amendment 11 of 2023, and the appellant's practitioners had received correspondence from the respondent indicating that the ruling was no longer subject to confirmation but rather to referral to arbitration. Regarding the second issue, Adv. *Uriri* relied on Rule 19 of the Labour Court Rules, 2017, which stipulates that the *dies induciae* as regards an appeal to this Court commences from the date of receipt of the determination, not the date of the termination of proceedings. In that light, he informed the Court that the award was received on the 12th of September, 2024, and the notice of appeal was filed on the 11th of October, 2024, which fell within the prescribed timelines.

In addressing the point raised by Mr. *Kabuya*, Adv. *Uriri* contended that there was no basis in legal authority for the position adopted by the respondent to the effect that an appeal relating to procedural grounds is invalid. He further submitted that Rule 20, which governs reviews, does not require a separate review application to be filed alongside a Notice of Appeal. Adv. *Uriri* emphasized that jurisdiction can be both a ground of appeal and review, citing Section 92EE of the Labour Act. He further argued that the common law provides for an appeal in the wide sense, which includes grounds for review. Consequently, Mr. *Uriri* contended that the relief sought was incompetent and that, if the notice of appeal was indeed invalid, the appropriate remedy would be to strike it off the roll, rather than dismiss the appeal.


In his response to Adv. Uriri’s submissions, Mr. Kabuya referenced Section 128 of the Labour Act [Chapter 28:01], which provides as follows:

“(1) Where a labour officer made a draft ruling in terms of section 93(5)(c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93(5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgement or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court:

Provided an employer shall have a right of appeal of the Labour Court within 30 days after notice of registration.”

It was the counsel’s argument that section 128 deemed the rulings of labour officers subject to appeals. Regarding the second issue, Mr. Kabuya conceded that the appeal against the arbitrator’s decision was made within the prescribed timelines. Pertaining to the third issue, Mr. Kabuya maintained that the rules do not permit grounds of review to be incorporated in a Notice of Appeal. He placed reliance on Rule 19(3) of the rules. He further argued that Section 92EE of the Labour Act clearly delineates jurisdictional issues as review matters, asserting that it is inappropriate to conflate the grounds for appeal with those for review. Mr. Kabuya emphasized that where the law is clear, there is no need to revert to common law, and a Notice of Appeal that does not comply with the rules is fatally defective and ought to be dismissed.

**RULING ON PRELIMINARY POINTS**

The first issue that I will address relates to the appeal against the Labour Officer's ruling issued in 2023, which has been conflated with the appeal against the arbitrator's ruling from 2024. In this respect, the Court finds merit in Mr. Kabuya's argument that Section 128 of the Labour Act effectively deemed Labour Officer's rulings as complete and final determinations, subject to appeal. This section applies retrospectively to decisions made prior to its enactment as can be deduced from its language. In light of this legislative development, it is patently clear that the appeal against the Labour Officer's ruling ought to have been filed in a timely manner following the promulgation of the amendment act 11 of 23. The failure to do so resulted in the appeal being made out of time. The absence of an application for condonation for the late filing of the appeal in the circumstances renders the first part of the appeal improperly before the Court. It is therefore my considered view that the first portion of the appeal, pertaining to the Labour Officer's decision, be struck out from the Notice of Appeal. Given the foregoing, I shall confine my consideration to the residual portion of the appeal, relating to the arbitrator's decision.

Regarding the second part of the appeal, Mr. *Kabuya* contended that it improperly merges the grounds for review and appeal within the same Notice of Appeal. In the case of *Zimasco (Pvt) Ltd v Marikano SC 6-14*, the Supreme Court confirmed that review proceedings are concerned with the manner in which a decision is taken and not the merits. The court stated as follows:

“Review proceedings are concerned with the manner in which a decision is taken and not its merits. If for example a disciplinary authority had no jurisdiction to hear a particular matter, or was biased or its decision grossly unreasonable, the person aggrieved is empowered to approach the Labour Court and apply for the review of the proceedings.”

A reading of the appellant’s grounds of appeal reveals that the first two grounds pertain to procedural matters and not the merits or lack thereof of the decision. The first ground questions the arbitrator's jurisdiction, while the second challenges that the decision was made in the minister of information’s absence. It is evident that these two grounds do not address the substantive decision. The above-referenced authority clearly indicates that jurisdictional issues are subject to review proceedings rather than appeal proceedings. Consequently, I concur with Mr. *Kabuya*'s submission that if the appellant intended to present review grounds, they should have utilized rule 19 (3), which allows for the concurrent filing of an appeal and a review in cases where the appellant is dissatisfied with procedural irregularities. Having established this, I will not dismiss the appeal in its entirety as prayed for by the respondent; rather, I will only strike out grounds of appeal 2.1 and 2.2, related to procedural issues and proceed to consider the remaining grounds.

**THE APPEAL**

The law governing appeals was clearly articulated in the case of *Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC-12-15* at page 7 of the cyclostyled judgment, wherein the Court stated as follows:

“It is settled that an appellate Court will not interfere with factual findings made by a trial court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it”


Further, in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A, the Court provided additional perspective on this issue and presented the following key points:

“It is not enough that the Appellate Court considers that if it had been in the position of the Primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary Court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

Taking into account the principles established by the above authorities, the question that arises for this Court’s determination is whether or not the arbitrator’s decision can be deemed as so unreasonable as to justify interference by this Court. I will now turn to the remaining grounds of appeal submitted by the appellant in this matter. I should also point out that during the hearing, both parties informed the Court that they were abiding by the extensive Heads of argument filed of record as far as the merits are concerned.

The argument raised by the appellant in ground 2.3 is that, the respondent failed to discharge her duty to mitigate her loss and consequently, the arbitrator erred in finding that respondent was entitled to damages and allowances calculated for the entire remaining period of the contract.

In the case of Gauntlet Security Services v Leonard 1997 (1) ZLR 583 (S), GUBBAY CJ (as he then was) had the following to say:

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”

In Goedhals v Graaff-Reinet Municipality 1955 (3) SA 482, HALL J elaborated on the concept at 487C-E, as follows:

“The general principle upon which damages are to be assessed was laid in Victoria Falls and Transvaal and Power Co. Ltd v Consolidated Langlaate Mines Ltd 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed.”

Further, in Zimbabwe Revenue Authority v Mudzimuwaona SC 4-18, the Court held that:


“…damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in Myers v Abramson 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:

“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).””

The authorities cited clearly indicate that, in the realm of fixed-term contracts, damages are generally granted for the remaining duration of the contract. A reading of the arbitrator's decision which appears on page 30 of the consolidated record reveals that he awarded damages for a period of 47 months, corresponding to the unexpired period of the contract. I consider it important to reproduce this excerpt from the ruling, which reads as follows:

“In the result I hold that: the claimant is entitled to damages and allowances for the entire remaining period of the contract extending from 5/9/19 up to 31 August 2023 as per the Labour Officers Ruling dated 4 April 2023. The claimant attached quotations for the figures of the claims and also the quantification is justifiable as it is based on the provisions of the written contract and is also for the remaining unexpired period of the contract i.e. 47 months…”

The question that exercises my mind at this juncture is whether the arbitrator correctly awarded damages for the full unexpired period of the contract without taking into account the respondent's responsibility to mitigate her losses. The precedent set in Miles v Abramson (supra) offers a clear methodology for calculating damages in fixed-term contracts, indicating that damages should be calculated based on the remaining contract duration, deducting any income earned or reasonably expected to have been earned during the relevant timeframe. In this light, the arbitrator's lack of inquiry into the mitigation of loss points to a misdirection on his part. In Rowland Electro Engineering (Pvt) Ltd v Zimbabwe 2007 (1) ZLR 1 (H), GOWORA J (as she then was) stated as follows:

“It is trite that a plaintiff seeking to claim damages based on breach of contract has a duty to mitigate his loss.”

Further, in Ambali v Bata Shoe Company Ltd 1999 ZLR (1) 417. At p 419 it was said:

“An employee who considers whether rightly or wrongly, that he has been unjustly dismissed is not entitled to sit around and do nothing. He must look for alternative employment. If he does not, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have expected to find alternative employment.”

In the spirit of the above authorities, it is my considered view that the arbitrator, by failing to take into consideration the issue of mitigation of loss, omitted an essential enquiry in his determination and consequently misdirected himself as far as the quantification process is concerned. The precedent set in *Barros v Chimphonda* (supra) indicates that an appellate Court is justified to substitute the decision of a lower Court if it finds that the lower Court failed to take into account some relevant consideration. On this basis, I find the third ground of appeal to be with merit.

The fourth ground of appeal raises the argument that the arbitrator erred by finding that the respondent was entitled to purchase a motor vehicle Mazda BT50 in the absence of any evidence granting her such right. The respondent’s argument is that the arbitrator’s finding cannot be faulted as the right was contractually conferred. The respondent’s contention is that the contract of employment stipulates in peremptory terms that in the event of premature termination of employment, the respondent would exercise the first right to buy the vehicle. A reading of the record shows that the arbitrator made his finding in this regard based on the cited clause in the contract. The relevant portion of the ruling reads:

“…On the motor vehicle, the claimant should be given the option to buy it at book value as part 7 of the contract clearly states that I quote:

“in the event of premature termination before expiry of five years, you will exercise the right to buy the vehicle.”

The appellant cited the case of *Nyahara v CFI Holdings Private Limited SC 81-14*, wherein ZIYAMBI JA stated the following:

“…Therefore, unless the contract specifically states so, a court ought to be careful not to read a legal right into a policy matter which is for the discretion of the employer. In my judgment the question of a right to purchase could only arise after an offer had been made to, and accepted by, the employee to purchase the vehicle and not before…” my emphasis

Upon careful examination of the contractual clause in question, it is evident that the provision unequivocally stipulates that in the event of premature contractual termination, the respondent is entitled to exercise the right to purchase the motor vehicle. Consequently, the arbitrator’s decision in this regard merely enforces the express terms of the parties’ contractual agreement and therefore cannot be termed irrational or a misdirection in the circumstances. The arguments advanced by the appellant, relying on the principles enunciated in the *Nyahara* case (supra) are distinguishable and inapplicable in this instance due to the clarity and specificity of the contractual provision. The contractual terms are unambiguous, and the arbitrator’s decision is consistent with the parties’ agreed-upon terms. Further, it is essential to safeguard the sanctity and privity of contracts. The Court’s role is to give effect to the parties’ intentions as expressed in their agreement. In light of this, I find the fourth ground of appeal to be without merit.

As far as costs are concerned, there has been partial success in the appeal and it is my view that each party should bear its own costs.

**DISPOSITION**

In the result, the Court makes the following Order:

1. The appeal partially succeeds.
2. Ground of appeal 2.3 be and is hereby upheld.
3. Ground of appeal 2.4, being devoid of merit, be and is hereby dismissed.
4. The arbitral award be and is hereby set aside in part and substituted with the following:

   4.1 The matter be remitted back for re-quantification on the question of damages due to the Appellant on the un-expired term of the contract of employment before the same arbitrator.
5. Each party to meet its own costs.

*Scanlen and Holderness -* Appellants Legal Practitioners

*Matsikidze Attorneys-* Respondent’s Legal Practitioners
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