Patras Mazibuko v Telecel Zimbabwe (Private) Limited

### Preamble
Judgment No. SC 129/20
1
Civil Appeal No. SC 367/19
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DISTRIBUTABLE	(121)

PATRAS     MAZIBUKO

v

TELECEL     ZIMBABWE     (PRIVATE)    LIMITED

SUPREME COURT OF ZIMBABWE

UCHENA JA, MATHONSI JA & CHITAKUNYE AJA

HARARE: JUNE 9, 2020 & OCTOBER 9, 2020

The appellant in person

O. Kondongwe, for the respondent

CHITAKUNYE AJA: This is an appeal against the whole judgment of the Labour Court dated 6 November 2019 under LC/H/521-16 dismissing the appellant’s appeal against arbitral awards by an arbitrator.

The facts giving rise to the appeal are largely common cause. They may be summarised as follows:

The appellant was employed by the respondent as a Human Resources and Administration Director. On 25 January 2011, the appellant was suspended from employment on allegations of misconduct in terms of the National Employment Code of Conduct Statutory Instrument 15 of 2006 (the national code). He challenged the suspension in the Labour Court and the suspension was, by consent, set aside and he resumed work. On 25 February 2011, he was again suspended from employment under the national code. The appellant made an application to the High Court alleging that the national code did not apply to the disciplinary proceedings of the respondent. The High Court ruled that the national code did not apply to the appellant as the respondent had its own registered code of conduct.

The matter was referred to a labour officer in terms of the respondent’s code of conduct who on 14 August 2013 issued a certificate of no settlement. The matter was not immediately referred to arbitration. The appellant then approached the Labour Court for relief in terms of s 93 (7) of the Labour Act [Chapter 28:01]. The Labour Court, acting in terms of the aforesaid section, ordered the Senior Labour Officer to refer the matter to arbitration within 30 days. The terms of reference were, inter alia, to determine:-

the lawfulness or otherwise of the appellant’s suspension;

whether there was unfair labour practice and, if yes,

the appropriate remedy.

The matter was accordingly referred to arbitration as ordered. On 5 July 2014 the arbitrator found that the appellant’s suspension was unlawful. He ordered that:-

The appellant be reinstated without loss of salary or benefits until such employment has been lawfully terminated;

In the event that reinstatement is untenable, either party can approach the tribunal for quantification of damages in lieu of reinstatement.

The order was to be implemented within 21 days.

On 10 July 2014 the respondent, by letter, advised the appellant not to report for work as reinstatement was no longer possible. By letter of 15 August 2014, the respondent advised the appellant that it was opting for quantification of damages for termination of employment in terms of the award and that the arbitrator was available to do the quantification. An application for the quantification of the award was done by the respondent.

The appellant, having been so advised of the respondent’s position, duly filed his statement of claim for damages in lieu of reinstatement in which he asked for, inter alia, punitive damages of nine years’ salary for unlawful termination of his contract of employment.

On 28 December 2016 the arbitrator made the quantification after considering submissions made by the parties. The quantification included an award of one and quarter year’s salary as damages for loss of employment in place of the nine years’ salary punitive damages that the appellant had claimed for termination of employment.

Following the quantification of the award, the appellant noted an appeal to the court a quo. The basis of the appeal was that the arbitrator erred by ordering payment of damages in lieu of reinstatement in circumstances where the contract of employment had not been terminated. He argued that damages in lieu of reinstatement can only be awarded where there is unfair dismissal. His position was that he was never dismissed from employment. He further submitted that the arbitrator ought to have determined whether or not the suspension was lawful or not and consider the appropriate remedy. According to the appellant, the appropriate remedy was reinstatement.

In response, the respondent argued that the arbitrator was correct in giving an alternative for payment of damages in lieu of reinstatement as it was evident that the working relationship between the parties was no longer tenable. The appellant also challenged the quantification process. He claimed that the figures were plucked from the air.

The court a quo found that the finding by the arbitrator that the contract of employment had been terminated cannot be impugned as the appellant claimed punitive damages for unlawful termination of his contract of employment. The court further found that the contract of employment was terminated when the parties went for quantification of damages. The reasoning of the court a quo was that there is no way the appellant would have participated in the quantification and claim punitive damages if the contract of employment had not been terminated.

On the issue of quantification, the court found that the damages were properly quantified as the arbitrator took into account all the evidence which was placed before him by both parties.

Dissatisfied by the decision of the court a quo the appellant appealed to this Court. He raised five grounds of appeal. The first ground of appeal pertained to an alleged failure to make a determination on a preliminary point raised by the appellant whilst the other grounds pertained essentially to the findings on the termination of the contract of employment and quantum of damages awarded in respect thereof.

The appellant sought the setting aside of the whole judgment of the court a quo and its substitution with the following:-

The arbitral award of Moses Dangwa of 4 July 2014 as supplemented by the quantification award of 28 December 2016 be and is hereby set aside.

The appellant be and is hereby declared to be still employed by the respondent.

The respondent is committing an unfair labour practice in failing to pay in full the Appellant’s salary and benefits, and should immediately commence payment of same, including all accrued sums at the date of this order, less any back pay in respect of net salary and benefits that have been paid.

At the hearing of this appeal, the appellant raised a preliminary point alluded to in the first ground to the effect that the court a quo did not deal with the preliminary point he had raised. The preliminary point was that the respondent had not filed heads of arguments timeously and therefore was barred. The appellant alleged that the court a quo erred when it did not address that preliminary point. It is the appellant’s case that the matter ought to be remitted to the court a quo so that it can decide on the preliminary point.

A perusal of the record of proceedings reveals that on 16 October 2018, the court a quo heard arguments on, and made rulings on all preliminary points which were before it. These comprised, inter alia, whether the case could be heard despite the incomplete state of the record; whether the respondent was barred in respect of the heads of argument concerning the preliminary point raised by the court and whether appellant’s grounds of appeal 1-3 were properly before the court.

After the court had made its determination on all the preliminary points before it, and that it would proceed to deal with the merits, counsel for the parties happily proceeded to make their submissions on the merits without any protestation or indication that any preliminary point had not been decided upon or even that counsel had not heard a pronouncement on any of the raised preliminary points. If at all counsel for the appellant had not heard a pronouncement on any preliminary point it was open to him to seek clarification with the court but alas he proceeded to argue on the merits which was indicative of appreciating that the preliminary points before the court had been addressed. It is my view that the raising of this ground is ill-conceived as clearly the issue was dealt with in the manner the court a quo deemed fit.

In any case this having been an appeal the court a quo could still have proceeded to determine the appeal on the merits based on the record of proceedings before it.

The filing of heads of arguments in the Labour Court is governed by r 26 (4) of the Labour Court Rules, Statutory Instrument 150 of 2017. The rule provides that:

“Where heads of argument that are required to be lodged in terms of sub-rule (3) are not lodged on behalf of the respondent, within the period or at the time specified in those provisions—

the Registrar shall nevertheless set down the application, appeal or review for hearing in terms of r 28;

subject to sub-rule (2), the defaulting party shall be barred and the Court may according to the nature of the case, or as the justice of the case requires—

enter a default judgment against the defaulting party; or

proceed to determine the matter.” (emphasis is  mine)

The rule empowers the Labour Court to decide on the matter even where a respondent, who is legally represented, fails to file heads of arguments timeously. The court a quo could have proceeded to consider the merits or demerits of the appeal even if the respondent had been barred. The failure, if any, would not vitiate the proceedings as the court could still decide the merits of the appeal based on the record of proceedings from the tribunal before it even where the respondent is barred. This is so because it is undesirable to decide labour matters on technicalities. See Dalny Mine v Banda SC 39-99.

On the merits, the pith of the appellant’s argument was that the court a quo erred and misdirected itself when it found that his contract of employment was terminated.

It is trite that there are limited grounds upon which an appellate court may interfere with the decision of a lower court on factual findings or exercise of discretion. It is not enough that the appellate court considers that if it had been in the position of the lower court it would have taken a different course.

Where the decision is impugned on the exercise of discretion by the lower court, the appellate court will interfere where it appears that some error has been made in exercising the discretion. If the lower court acted on a wrong principle, if it allowed extraneous or irrelevant matters to guide it or affect it, if it mistakes a fact, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution provided always it has the material for so doing. See Barros & Anor v Chimphonda 1999 (1) ZLR 58(SC).

Where the attack is premised on findings of fact, as in this case, the appellate court will interfere with such findings of fact if the 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. See Metallon Gold Zimbabwe v Golden Million (Private) Limited SC 12/15 p 7 and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S) at p 670.

The circumstances under which this Court will interfere with the findings of a lower court were also enunciated by this Court in RBZ v Granger & Anor SC 34-01 as follows:

“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.” (See also Zvokusekwa v Bikita Rural District Council SC 44/15)

Where the findings by the lower court are not shown to have been contrary to the evidence adduced and the applicable principle of law, an appellate court will not interfere with the lower court’s decision.

Therefore, the vital question before this Court is whether or not the factual finding made by the court a quo that the contract of employment was terminated is grossly unreasonable in its defiance of logic or out of sync with the evidence adduced. It must be noted that the appellant voluntarily participated in the quantification proceedings. Not only did he participate but he also claimed punitive damages for termination of his contract of employment. Paragraph 15 of his claim acknowledges it by stating that-

“The claimant claims punitive damages for unlawful termination of his contract of employment. Claimant seeks payment of damages of nine years owing to the respondent’s aggravating conduct and the manner in which respondent conducted itself both at the time of claimant’s suspension and the period thereafter.”

In his affidavit in support of the claim, the appellant alluded to the various efforts he had made to find alternative employment. This is evidence enough that at that stage he had accepted that his contract of employment had been terminated. He had by virtue of this, accepted the repudiation of contract by the respondent, who had not accepted him back to work and stated that it was no longer possible to reinstate him. This position had been communicated to him on 15 August 2014 and during the negotiations which followed that letter to the stage where quantification was made and the appellant received the damages which included a salary for one and a quarter years. In his appeal he did not offer to pay back what he received and spent as damages for the termination of employment.

The appellant cannot both approbate and reprobate proceedings in which he fully participated. He cannot have it both ways. The point was made in S v Marutsi 1990 (2) ZLR 370 at p 374B that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other, not both.”

See also Archipelago (Private) Limited v Local Authorities Pension Fund & Anor SC 30/13.

The arbitral award gave the respondent 21 days to comply. The respondent had an option of either to reinstate the appellant or pay damages in lieu of reinstatement. By electing to quantify damages in lieu of reinstatement, the respondent repudiated the contract of employment. The appellant had the option of either challenging the quantification or accepting the repudiation. The appellant chose the latter. In United Bottlers v Kaduya SC 34/06 p 4 the following was said concerning repudiation of contract:

“Where an employee is under suspension and he takes up employment elsewhere he terminates his employment. An unlawful suspension of an employee is a repudiation of the contract of employment by the employer. The employee can elect either to accept the repudiation or enforce the contract.  If an employee accepts alternative employment, by that fact alone he accepts the employer’s repudiation and the only remaining remedy for the employee is to sue the employer for damages for breach of contract.”

Although the above case relates to an employee who is under suspension the principle remains the same that where an employer repudiates a contract of employment, the employee has the option of enforcing his contract of employment or accepting the repudiation.

In casu, the appellant accepted the repudiation by claiming punitive damages and seeking alternative employment. The failure to secure such employment did not detract from the fact that he was seeking alternative employment because he had accepted that he was no longer an employee of the respondent.

The correct procedure to follow where a tribunal orders reinstatement or payment of damages in lieu of reinstatement in circumstances where the employee believes that he or she was not dismissed from employment was enunciated in the case of of Cimas v Nyandoro SC 6/16 at p 8 where it was aptly noted that:

“If the respondent was genuine in his allegation that he did not regard himself dismissed, he ought to have cross appealed to the Labour Court seeking the setting aside of the order of damages in lieu of reinstatement because the only claim he could have made under s 6(2)(b) of the Code was for an order that the circumstances of his case justified the removal of the suspension and his reinstatement in the sense of being allowed to work.

If this case was about ‘reinstatement to the payroll’ as alleged, the respondent would have distanced himself from that part of the judgment which related to damages in lieu of reinstatement, a concept associated with dismissal.  All this points to the respondent bringing a claim predicated on a perceived dismissal from appellant’s employ.”

In casu, if the appellant was not happy with the decision of the arbitrator which awarded him damages in lieu of reinstatement, he ought to have appealed against that decision. However, he did not appeal against that decision but chose to participate in the quantification proceedings. He also claimed punitive damages for unlawful termination of his contract of employment. All this point to one thing, which is, that the appellant had accepted the repudiation. The finding by the court a quo that there was a repudiation of the contract of employment is not irrational or contrary to the evidence adduced. The belated appeal against the arbitrator’s decision appears to have been motivated by the fact that the arbitrator did not award punitive damages to the extent the appellant had claimed.

The appellant’s assertion that the court a quo erred in accepting the sum awarded by the arbitrator when such was plucked from the air is without merit. A perusal of the record of proceedings shows that the sum was arrived at after an exercise of discretion in accepting some claims and dismissing others. The manner in which the figure was arrived at cannot be faulted considering the information the two parties placed before the arbitrator.

DISPOSITION

The court a quo did not err or misdirect itself in any way so as to warrant this Court’s interference with its decision. The appeal has no merit.

On the question of costs I am of the view that the circumstances do not warrant an award of costs against the appellant.

In the result, the appeal be and is hereby dismissed with each party to bear its own costs.

UCHENA JA:     			I   agree.

MATHONSI JA:     			I   agree.

Dube, Manikai & Hwacha, respondent's legal practitioners