ZIYAMBI JA: In chambers in terms of r 5 of the
Rules of the Supreme Court, 1964.
[1] This application is brought in terms of
s 92 F (3) of the Labour Act [Chapter
28:01] (“the Act”). Leave to appeal
was refused by the Labour Court on 23 January 2015.
[2] The
applicant was employed by the respondent as a shift foreman. In November 2012 he was charged with acts of
misconduct in that he had violated clauses 11, described by him as 'the
confidentiality clause', and 9 of his contract of employment. The charges
stemmed from two text messages. The
first was sent by the applicant to one Gambiza.
The message read:
“Hello,
are you still supplying Marange with cement, be cautious now our financial
position is tricky. Did you manage to
import those trucks? How is business and
family?”
The second was a text message received by
the applicant on his cell phone. It
read:
“Am about to
convince the finance min to invest in 3 plants to Marange. Do me a paper telling me the cost of landing
them and timing of commissioning.
Indicate approximate production output thereafter and estimated monthly
revenues…”
It
was alleged, in respect of clause 11, that the applicant had communicated, to
third parties, confidential information relating to his employer's affairs. With regard to clause 9, it was charged, in
the alternative, that he had violated the competition clause of his contract by
engaging in the mining of diamonds in the Marange area without the consent of
his employer.
[3] The applicant was found guilty on the
main charge and dismissed from employment.
It is not clear from the scanty information provided whether he was also
found guilty of the second charge.
However since no issue has been made as to the penalty of dismissal I
proceed on the basis that this penalty was deemed properly to follow in the
event of a conviction on either the first charge or indeed any of the two charges preferred.
[4] According
to the facts as related in the judgment of the Labour Court, the applicant,
unsuccessfully, filed an internal appeal from the decision of the disciplinary
committee. He then reported the matter
to a Labour Officer who, having failed to achieve a settlement between the
parties, referred the matter to arbitration.
Dissatisfied with the arbitrator's ruling against him, the applicant
appealed to the Labour Court. The
grounds of appeal were that:
“The
arbitrator erred grossly and misdirected herself as to the facts and such gross
misdirection as to the facts amounts to a misdirection as to the law in finding
that:-
i)
The appellant violated clause 11 of his
contract of employment (confidentiality clause) by merely mentioning the word
“Marange” in a text message to one Gambiza.
ii)
The appellant violated clause 9 of his
contract of employment (competition clause) by merely receiving a text message
on his cell phone from one Timba mentioning some intentions in mining
business.”
The
applicant sought to be reinstated to his former employment with no loss of
benefits.
[6] The Labour court dismissed the appeal on
the grounds that the appeal was against factual findings of the arbitrator which
findings were not appealable.
Having
analysed the findings of the arbitrator and found they were factual and raised
no point of law, it said:
“The
arbitrator in her factual findings with regards to appellant's text to Gambiza
about “Marange” found he could
not be referring to Marange as a community”.
Commenting
on the arbitrator's interpretation of
the sentence: “our financial position is
tricky”, that:
“Our” to me shows that
claimant was referring to none other than the respondent's company. This is highly
buttressed by the fact that he was indeed part of respondent's company as an
employee that is why he said “our” showing a sense of belonging”, the
Court said:
“I
am persuaded by the arbitrator's finding that appellant could not have known
[the] personal financial status of the people who stayed in Marange to go to
the extent of speaking in a representative manner.
When
the appellant made submissions before the arbitrator he stated that he meant
Anjine another diamond company operating in Marange. It is further stated that
the appellant submitted that he said so because of a collective job action that
had occurred. However this is not convincing as appellant did not work for
Anjine.
The
arbitrator thus found that the appellant had breached clauses 11 and 9 of his
employment by divulging confidential information to outsiders.”
It
went on to dismiss the appeal on the grounds that the factual findings raised
by the applicant were not appealable.
[6] The applicant was undeterred. He applied for leave to appeal against the
judgment of the Labour Court. It is the
refusal by that court to grant leave to appeal which has led to this
application.
[7] I begin with the Notice of Appeal
attached to the application. It is
quoted in extenso.
“NOTICE AND GROUNDS OF APPEAL
TAKE NOTICE THAT
appellant, having been granted leave on the ……… day of ……… 2014
And
tendering all costs for the preparation of the record and any other costs that
may be required by law, ELSON GUMBO
hereby notes an appeal to the Supreme Court against the judgment of the Labour
Court attached as Annexure “A” on grounds and issues of law as follows. The
appeal is filed against the portion of the judgment namely that:-
a. The
appellant did not raise any factual finding that was appealable.
b. The
arbitrator's findings were sound both in fact and law.
GROUNDS OF APPEAL
1. The
court a quo erred at law in not
finding that the arbitrator grossly erred as to the facts and such gross
misdirection amounts to a misdirection as to the law in ignoring crucial facts
in favour of the appellant. This relates to whether or not Gambiza the
recipient of the message from appellant never supplied cement to respondent at
any given time so there is no way the text message relating to supply of cement
could refer to the respondent thereby violating the confidentiality clause of
his employment contract.
2. The
court a quo erred and misdirected
itself in finding that the arbitrator's findings were sound both in fact and in
law, a finding which sharply contracts her own finding that the appellant did
not raise any factual finding that was appealable. The appeal was not per se
based on a point of law but on the contention of gross misdirection as to the
facts which amounts to a misdirection as to the law.
WHEREFORE applicant
prays for an order that;
1. The
judgment of the Labour Court be and is hereby set aside and substituted as
follows:-
(i)
The learned arbitrator erred in finding
that merely mentioning the word “Marange” in a text message the appellant was
referring to the respondent and violated clause 11 of his contract of
employment (confidentiality clause).
(ii)
The respondent shall pay costs of this
appeal.”
[8] Annexure “A” was not attached to the
notice of appeal although it forms part of the record and follows the applicant's
founding affidavit though not mentioned or identified therein. Ex facie
the document, it is a judgment by the Labour Court refusing leave to
appeal. The Labour Act does not provide
for an appeal against a refusal by that court to grant leave to appeal. It provides for an application to the Supreme
Court for leave to appeal where the Labour Court has refused such leave. Thus the appeal could not validly have been
noted against the judgment marked “Annexure A”.
[9] The draft notice of appeal does not
comply with the Rules of this Court.
It
will be noted that the judgment appealed against has not been identified. The
date of the judgment has not been indicated.
Section 7(b) of the Supreme Court (Miscellaneous Appeals and References)
Rules requires that the date of the judgment appealed against be set out in the
Notice of Appeal.
While
there is a judgment marked Annexure B contained in the body of the record, it has
not been identified as the judgment sought to be appealed against.
The prayer would not
bring finality to the dispute.
[10] On the merits, lest I be accused of
promoting form against substance, the Labour Court was not shown to be
irrational in its finding that the arbitrator made factual findings which were
not appealable.
The
applicant argued that the fact that Gambiza denied supplying cement to Marange
was crucial to the decision and both the arbitrator and the Labour Court
misdirected themselves in ignoring this fact.
However the reasons given by the
arbitrator as quoted above do not display irrationality at all let alone to the
extent that is required to amount to a misdirection in law. In this regard the
following passage from the judgment of this Court in Hama v National Railways of Zimbabwe 1996 (1) ZLR664 (S) bears repeating:
“The general rule
of the law, as regards irrationality, is that an appellate court will not
interfere with a decision of a trial court based purely on a finding of fact,
unless it is satisfied that, having regard to the evidence placed before the
trial court, the finding complained of is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at such a conclusion.”
[11] Accordingly, in addition to the litany of
errors expressed above, no prospects of success on appeal have been shown to
exist.
The application is
therefore dismissed with costs.
Chambati
Mataka & Makonese, applicant's legal practitioners
Mutamangira & Associates, respondent's legal
practitioners
