Rainbow Tourism Group (Private) Limited v Esther Knife

### Preamble
Judgment No. SC 154/20
1
Civil Appeal No. SC 769/18
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DISTRIBUTABLE		(144)

RAINBOW     TOURISM     GROUP     (PRIVATE)     LIMITED

v

ESTHER     KNIFE

SUPREME COURT OF ZIMBABWE

MAKARAU JA, HLATSHWAYO JA AND MAKONI JA

HARARE: FEBRUARY 15, 2019 AND NOVEMBER 19, 2020

T. Magwaliba for appellant

Respondent in default

MAKARAU JA:

This is an appeal against the judgment of the Labour Court handed down on 20 March 2015 dismissing with costs, an appeal by the appellant against an arbitral award in favour of the respondent.

Background facts

The respondent was employed by the appellant as a Personal Assistant to the Human Resources Director. She had served in that position for five years and had served under other directors and managers who had since left the employment of the appellant. Wishing to appoint a personal assistant of her own choice, on 12 April 2013, the incumbent Human Resources Director transferred the respondent to the post of guest relations officer at a hotel in the appellant’s group. The respondent challenged the transfer which she viewed as a demotion and not in line with growth in her preferred career of human resource management. The appellant held firm on the transfer and promised that once a suitable position occurred in the human resources department, respondent would be transferred back.

Alleging that the employer had thereby made her continued employment intolerable, the respondent gave three months’ notice of her intention to leave employment which she did on 31 July 2013. Thereafter she lodged a complaint with a Labour Officer who, after failing to settle the matter, referred it for compulsory arbitration. The arbitrator found that the respondent had been constructively dismissed, that her transfer to the post of guest relations officer was unlawful and ordered that she be paid damages as re-employment was no longer tenable.

Aggrieved by the award, the appellant noted an appeal to the court a quo, initially raising five grounds of appeal but eventually relying on only one. In a ruling that has not been challenged, the court a quo found that four of the five grounds did not disclose a point of law but challenged the factual findings by the arbitrator.  Correctly relying on RBZ v Granger SC 34/2001, the court held that for a finding of fact to amount to a point of law, the trier of fact must have seriously misdirected himself or herself on the facts. It thus found that only one ground challenging the basis upon which the arbitrator made his finding that the respondent had been constructively dismissed, raised a point of law.  It then directed that the appeal be set down for determination on this sole ground.

During the hearing of the appeal a quo, the appellant unsuccessfully argued that there was a serious misdirection on the facts by the arbitrator. The court a quo was satisfied on the evidence on record, that the respondent had been demoted by the transfer and that any employee in her shoes would have resigned as a result. It was of the further view that an offer of an inferior position as occurred in casu, constitutes constructive dismissal. It thus dismissed the appeal with an accompanying order of costs.

The appeal

Before this Court, the appellant raised four grounds of appeal. In all the four grounds, the appellant alleged that the court a quo grossly misdirected itself on the facts and evidence that was before it and particularly in finding that the respondent had been constructively dismissed. In essence, the four grounds raise only one issue for determination. It is whether or not the arbitrator, as upheld by the court a quo, misdirected himself on the facts of the matter in finding that the respondent had been constructively dismissed.

In its notice of appeal, the appellant alleged that the court a quo misdirected itself in its findings on the facts. In determining the issue that is before this Court, it is necessary that the “findings” by the court a quo, and upon which the appellant alleged misdirection, be contextualised. The court a quo did not make any fresh findings of fact. It merely upheld the finding by the arbitrator that the respondent had been constructively dismissed. In making this “finding”, it of necessity had to revisit the facts of the matter to determine whether the decision by the arbitrator was reasonable and logical.

Thus, the ratio of the decision a quo is that the decision of the arbitrator, which was wholly factual, was reasonable and logical, it being common cause that there was no dispute as to the applicable law in the matter. Thus, immediately before dismissing the appeal, the court a quo observed that “the appellant had failed to show that the arbitrator’s finding on constructive dismissal was grossly unreasonable…defying logic….”

At the hearing of this appeal, counsel for the appellant confined himself to the sole issue whether on the evidence on record, it was established that the respondent was constructively dismissed. We understood counsel to be confining himself to the issue of whether the decision by the court a quo that the arbitrator’s finding was reasonable and logical was correct. Put differently, we understood counsel to be arguing that the arbitrator had misdirected himself on the facts of the matter and the court a quo had, in turn, erroneously failed to identify the misdirection. We did not understand counsel to be inviting us to exercise a fresh discretion on the facts of the matter as this would have fallen foul of the law that limits the scope of appeals from an arbitrator to the court a quo and, in turn, from the court a quo to this court.

A misdirection on the facts occurs when the decision made based on those facts is irrational due to a mistaken view of the facts. The mistake may entail taking into account and placing unmerited weight on an extraneous fact, overlooking a material fact, or failing to place due weight on a material fact. This position has been settled in a long line of cases. (See Hama v National Railways of Zimbabwe, 1996 (2) ZLR 774 (S); Barros and Anor v Chimponda 1999 (1) ZLR 58 (S); Agrifoods v Chiruka and Ors SC 116/04; Sapes Trust (Pvt) Ltd v Mangena SC 106/05).

In casu, we were not directed to any mistake that the arbitrator made on the facts. Put differently, the appellant did not direct us to any fact which, if it had been correctly taken into account and given its due weight, would have led the arbitrator to a different conclusion.

Rather, the appellant challenged the finding that the respondent had been demoted as irrational. It argued that the profiles of the two jobs did not show that one was inferior to the other. It further argued that there was no alteration to the respondent’s grade after the transfer and that the reason the respondent resigned was not that the working conditions had become intolerable but because the transfer was not in line with her career aspirations.

All the above facts that the appellant seeks to rely on were duly considered by the arbitrator and the court a quo in turn. It is on the basis of these facts that the arbitrator observed that the respondent was demoted because she was not transferred with her title, duties and responsibilities.

In particular, the arbitrator and the court a quo compared the profiles of the two positions and adversely found against the transfer on the basis that the position of guest relations officer itself commanded a lower grade than that of personal assistant to an executive director.  Both decisions observed that even if the personal grade of the respondent did not change, the transfer placed her in an inherently lower position within the corporation.

It being common cause that the position of guest relations officer was the respondent’s entry position when she joined the appellant in 2014 and all subsequent postings had been on promotion, it was not irrational to hold that the transfer back to the position of guest relations officer was a demotion in the circumstances.

The court a quo found that the transfer also adversely altered the respondent’s reporting structure and that this was further evidence of the demotion. From reporting and interacting with an executive director, the respondent was required to report to a general manager whose position was significantly below the Executive Director in the hierarchy of the corporate structure.

Counsel submitted before us that the respondent left employment not because the transfer had made continued employment intolerable but because it marked a deviation from her desired career path. This is not borne out by the evidence on record as the respondent raised this concern initially but did not cite it as the cause of her resignation. The arbitrator correctly found on the evidence that was placed before him that the transfer on its own was a demotion and constituted deliberate conduct by the employer of making continued employment for the respondent intolerable. It was thus his finding that the proximate cause of the respondent’s resignation was the demotion inherent in the transfer and not the deviation from the career path.

The law on constructive dismissal is settled. It was not in dispute in this matter. It is governed by both the Labour Act [Chapter 28.01] and the common law. The test is materially the same. Constructive dismissal under the Act is deemed where the employer deliberately makes continued employment for an employee intolerable. Under the common law, the intention of the employer appears immaterial, making the test purely objective.

In casu, the arbitrator relied on the statutory provision and found that the employer had deliberately made employment intolerable for the employee.

From the evidence on record, I cannot find this conclusion grossly unreasonable or illogical for the reasons discussed above. I therefore find no merit in the appeal which I accordingly dismiss.

Regarding costs, I see no justification for departing from the general rule that costs should follow the cause.

In the result, I make the following order:

The appeal is dismissed with costs.

HLATSHWAYO JA 		:		I AGREE

MAKONI JA				:		I AGREE

C Kuhuni Attorneys, appellant’s legal practitioners.