Zimbabwe Electricity Transmission and Distribution Company v Lawrence Mtandwa and Ronald Mutombodzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/250/14
HARARE ON 3rd MARCH, 2014
CASE NO. LC/H/597/13
AND 9 MAY, 2014
JUDGMENT NO. LC/H/250/14
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/250/14

HARARE ON 3rd MARCH, 2014				             CASE NO. LC/H/597/13

AND 9th MAY, 2014

In the matter between

ZIMBABWE ELECTRCITY TRANSMISSION AND

DISTRIBUTION COMPANY				–	APPELLANT

And

LAWRENCE MTANDWA					-	1ST RESPONDENT

And

RONALD MUTOMBODZI					- 	2ND RESPONDENT

Before The Honourable L.M. Murasi J.

For Appellant:	Advocate T. Mpofu

For Respondents :	Mr S. Magogo  (Legal Practitioner)

MURASI  J,

This matter had endured a tortuous legal route.

Respondents were employed by Appellant as engineers and managerial employees. In April 2012, the Respondents were served with transfer letters which they challenged resulting in an award being made by Arbitrator Shawatu on 9th May 2012 which was to the effect that:

“-	the Respondent (Appellant) is hereby ordered to consult the claimants first concerning their wishes, concerns and personal circumstances, regarding the transfers before a discretion to transfer is made.

The Respondent is further ordered that the decision to transfer the claimants

they had made is invalid and therefore without force or effect for the decision was made without observing the principles of natural justice and the doctrine of legitimate expectation .

In relation to this dispute, the Respondent is further ordered to engage the ZESA

Management Association (ZEMA) since it represents the interests of all the affected

claimants and accordingly consult on the wishes, concerns and circumstances of the claimants OR to consult the claimants individually since the wishes, concerns and personal circumstances differ from person to person.

The Respondent is further ordered that any letter or correspondence made or to be

made without first consulting the claimants, in utmost good faith, before a decision to

transfer them is reached, is invalid, void and without legal basis.”

Respondents later approached the Labour Office and the High Court on 28th August 2012. However, Respondents were issued with letters of suspension on 10th September 2012 and notices to appear before the Disciplinary Authority on 20th September 2012. The High Court issued an order on 10th October 2012 whose operative part reads:

“Pending the finalization of the complaint of unfair labour practice at the Ministry of Labour and Social Services, the 1st and 2nd Respondent be and are hereby ordered to forthwith cease the unilateral transfers of the applicants from their current workstations.”

The matter in the above order by the High Court ended up with Arbitrator Nyamupachitu who issued the following award on 29th November 2012:

“(1)	Respondent is ordered to comply with the Arbitral Award granted by the Hon. Arbitrator Shawatu within 7 days of signing of this award because it has continued to commit unfair labour practice.

(2)	In compliance with this award, Respondent should not bar claimants from reporting for duty and/or accessing their offices at previous workstations.”

Appellant proceeded with the hearings and dismissed the Respondents. The matter ended up with Arbitrator Shumba who upheld the claim for unfair dismissal and ordered reinstatement of the Respondents. Appellant is aggrieved by the decision of Arbitrator Shumba and has approached this court for relief.

Appellant’s grounds of appeal are listed as follows:

The Arbitrator erred at law in failing to consider the defence placed before her by the Appellant which was to the effect that the movement from one office to another of the two Respondents did not amount to a transfer within the context of the law and to that extent it was not necessary to consult the Respondents.

If Appellant’s defence above was dismissed, then the Arbitrator’s finding that

consultation was necessary is so grossly unreasonable such that no informed reasonable person properly applying his mind to the matter would have made such a finding.

The Arbitrator erred at law in finding that the filing of an appeal against an Arbitration award does not have the effect of suspending the implementation of that award.

The Arbitrator erred at law in finding  that:-

The ‘transfer’ directive by the employer violated an order of the High Court.  Among other things, the directive by the employer was given well before the issuance of the High Court.

The ‘transfer’ directive by the employer violated the arbitration award by Arbitrator Nyamupachitu. Among other things, the directive of the employer was given well before the arbitration award by Arbitrator Nyamupachitu.

The existence of the award by Arbitrator Shawatu obliged that the 2nd Respondent be consulted prior to their movement.

The Arbitrator erred in basing her decision on:-

The High Court Order whose true meaning is still in debate;

Arbitration awards by both Arbitrator Shawatu and Arbitrator Nyamuchitu that are both on appeal and thus may be set aside.

It is trite that an appeal court will interfere with a decision of a lower court or tribunal where that court or tribunal has committed an irregularity or misdirection or where the manner in which it exercised its discretion was so unreasonable as to vitiate the decision made. It has also been stated that such interference is warranted where there is gross unreasonableness which can be inferred where there is evidence that the person has not applied his/her mind to the  matter (see UNION GOVERNMENT VS. UNION STEEL CORPORATION 1928 AD 220).

Having outlined the above legal parameter, the court will examine the Appellant’s grounds of appeal in turn.

Appellant’s first ground of appeal averred that the Arbitrator erred at law in failing to find that the movement of Respondents from one office to another did not amount to a transfer within the context of the law and it was not necessary to consult the Respondents. Appellant argued that since the Respondents were being moved from one office to the other and the other from one building to another, this did not amount to a transfer and therefore there was no need for consultation. Respondents, on the other hand, submitted that these were transfers and referred to the record where witnesses who testified on behalf of Appellant referred to these movements are “transfers”. Respondents particularly referred to the evidence of Mr Katsande on pages 91 and 92 of the record. The evidence reads as follows:

“Mr Nyamakura:	To your knowledge is there a difference in the company between transfer and relocation?

Mr Katsande:	Both are transfers; one involves relocation to another town where disturbance allowance is applicable and whereby a number of factors have to be considered.

Mr Nyamakura:	Is it your evidence that Mr Mutombodzi was transferred?

Mr Katsande:	Yes, but without residential relocation.”

As far as consultation is concerned the Appellant’s witness had the following to say:

“Mr Nyamakura:	If you were to be moved to the Ground Floor on the same salary and benefits would you require prior notification?

Mr Katsande:	Yes: I would expect to know the reason before I move.”

It would appear that Appellant’s submissions on the first ground of appeal are at variance with the evidence given during the Disciplinary Hearing. Naturally, it would be beneficial to take heed of what was said in evidence. It is the Court’s view that he evidence adduced clearly showed these to be transfers. The Oxford Advanced Learner’s Dictionary, 7th Edition defines ‘consultation’ as:

“to move from one place to another; to move something or somebody from one place to another …………. the act of moving somebody/something from one place, group or job to another”

Considering the above definitions and the evidence given by Mr Katsande on behalf of Appellant, can it be said that Arbitrator Shamu grossly erred in her finding ? The Court is of the view that the evidence and the circumstances militate against making a contrary finding and that ground of appeal must fail.

In the second ground of appeal, Appellant submits that the Arbitrator erred at law in finding that the filing of an appeal against an arbitration award does not have the effect of suspending the implementation of that award. Appellant apparently takes refuge in the decision made in the Dhlodhlo case and goes on to suggest that the case is “binding on this court” despite acknowledging that there are “judgments which take the contrary view”. In coming up with her decision, the Arbitrator clearly makes the following statement:

“The matter has obviously been subject to a lot of debate as evidenced by the judgments that both Counsel quote in their submissions.”

The Arbitrator then goes on to make reference to sections 2(3) and 92E of the Labour Act and concludes that the provisions of the Act do not provide for the suspension of the award appealed against. The same reasoning was arrived at by PATEL J. (as he then was) in KINDOM BANK WORKERS COMMITTEE VS KINGDOM BANK FINANCIAL HOLDINGS HH 302/11. In SANELE DHLOMO BHALA VS LOWEVELD RHINO TRUST HH 263/13, MAFUSIRE J., had this to say:

“…………..it seems plain that the decisions in Dhlodhlo and Mvududu were, with all due respect, incorrect on the question of the effect of an appeal to the Labour Court from the decision of the Arbitrator vis-a-vis  the provisions of section 92E of the Act. I think it was incorrect to say that whereas section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination appealed against there is no such provision in relation to an appeal against an award by an Arbitrator. There is such a provision. Section 92E is an omnibus provision regarding all appeals made in terms of the Labour Act.”

It is the court’s considered view that there was no misdirection on the part of the Arbitrator on this point as she clearly considered the provisions of the Act and case law and this ground of appeal must also fail.

In the third ground of appeal, Appellant states that the Arbitrator  erred in finding that the “transfer” directive violated the High Court Order when this directive was given before the High Court Order. The same issue is raised concerning arbitral awards by Shawatu and Nyamupachitu. The Arbitrator states as follows:

“In casu the order was given against a background of arbitral awards and a High Court Order, all ordering that the respondent was not to transfer claimants until it had consulted them.”

This statement was made by the Arbitrator when discussing the lawfulness of the order given by the Appellant. The High Court Order referred to by Appellant was issued on 10th October 2012 before the conclusion of the hearings. Appellant was aware of the existence of the High Court Order prior to making the decision to dismiss the Respondents. The order to Respondents to report for duty on 1st September 2012 was made in the face of an existing award barring such transfer. When Appellant instituted disciplinary proceedings against Respondents it was aware that an application was pending in the High Court to stop the transfer. Whilst acknowledging that the Order was only issued on 10th October 2012, Appellant did not seem committed to having the matter resolved in the way the Respondents wanted it to be. It is evident that Arbitrator Shamu could not ignore the existence of arbitral awards in making her decision. These awards had barred Appellant from transferring the Respondents without consultation. They were subject to appeal but had not been set aside. They were binding on both Appellant and Respondents. In any event the Arbitrator had made a finding that the appeal against the arbitral awards did not suspend them as provided for in the Act. The Arbitrator’s finding in this respect cannot be faulted.

The last ground of appeal alleges that the Arbitrator erred in basing her decision on the High Court Order and awards by Arbitrators Shawatu and Nyamupachitu which are both on appeal and may be set aside. This ground of appeal has partly been addressed above. The Arbitrator clearly states that these orders:

“have not been suspended by the appeal and that makes the order to the claimants by respondent ultra vires.”:

The reasoning behind the finding is based on the provisions of section 92E of the Act. The Arbitrator had concluded that the noting of an appeal does not suspend the award. The Arbitrator was following the dictates of the law. Her views on this point are supported by the High Court judgments referred to above. In my view, the Arbitrator was alive to the isues before her. This ground must also fail.

In conclusion, this Court shares the views of NDOU J. in JONA NDALAMA VS CHIEF SUPERINTENDANT HAPPYMORE SIGAUKE AND ANOR. HB 153/11 at page 2 of the cyclostyled judgment where he had this to say:

“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.”

In the result, the Court finds that there is no merit in the appeal and it must be dismissed.

The Court makes the following order:

The award by Arbitrator N. Shumba dated 30th July 2013 reinstating the Respondents without loss of salary and benefits is hereby upheld.

That there be no order as to costs.

Dube, Manikai & Hwacha – Applicant’s legal practitioners

Sinyoro & Partners – Respondent’s legal practitioners