GARWE
JA:
[1]
At the conclusion of the hearing of an appeal noted to the Labour
Court by the appellant, the Labour Court upheld the point in limine
taken by the respondent that the appeal was improperly before the
court as it sought to impugn findings of fact rather than law.
As
a consequence of that finding, the court a quo dismissed the appeal
with costs.
It
is against that order that the appellant has now approached this
Court seeking an order setting aside that finding and remitting the
matter to the court a quo for a determination of the matter on the
merits.
FACTUAL
BACKGROUND
[2]
The respondent was employed by the appellant as its finance director.
Although both the arbitrator and the court a quo say that she was
employed on fixed term contracts which were periodically renewed, the
record, in fact, shows that she was employed in that capacity on a
fixed three-year contract which commenced on 8 June 2009 and was set
to expire on 7 June 2012. For the duration of the contract period,
either party had the right, in terms of the contract, to terminate
the contract upon giving six months notice in writing of such
termination.
[3]
On 27 March 2012, less than three months before her contract was set
to expire, the appellant's Human Resources Committee held a meeting
at which all the members present (excluding the respondent who had
been asked to recuse herself) recommended that her contract be
renewed, subject to approval by the Council of the appellant.
A
special executive committee of the council met two days later and
also “strongly and unanimously” recommended that the respondent's
contract of employment as finance director be renewed for a further
period of three years, on the same terms and conditions, subject to
approval by the Minister.
[4]
On 7 June 2012, the date on which her contract was set to expire, the
Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the
respondent advising that the Council of the appellant had decided to
appoint her in an acting capacity from 9 June 2012 “until further
notice”.
Pursuant
to that communication, the respondent continued offering her services
as finance director until 27 June 2013, over a year later, when she
received a letter from the chairman of the council.
The
letter advised that the council was now in a position to make a
substantive appointment of a finance director.
In
the letter, the chairman gave the appellant notice of termination of
her contract of employment, effective 30 September 2013.
It
bears mention at this stage that, as a matter of fact, the chairman
of council gave her three calendar months notice of the termination
of her employment.
The
letter also requested that she vacates her office immediately and
that she carries out a handover-takeover of assets and records with
the Acting Finance Manager.
[5]
Unhappy with the sudden turn of events, the respondent lodged a
complaint of unfair dismissal with a labour officer.
Having
failed to conciliate the dispute between the parties, the Labour
Officer (then) referred the matter to an arbitrator to determine
whether she had been unlawfully dismissed and, if that was the case,
the appropriate remedy.
[6]
In proceedings before the arbitrator, the appellant disputed that the
respondent could have entertained a legitimate expectation of her
contract being renewed. It argued that the respondent could not rely
on a mere recommendation of a committee of the council. Appellant
also argued that the respondent had accepted her termination and,
pursuant thereto, had vacated her office and accepted her terminal
benefits.
[7]
In his findings, the arbitrator rejected the contention that the
respondent had waived her right to appeal.
The
arbitrator agonised over the status of the respondent between 7 June
2012 and 27 June 2013 when her employment was formally terminated.
He
noted that the acting appointment did not “mention an extension of
the fixed term contract… nor does it specify the basis for such
acting appointment or the duration of the same.”
He
concluded that this was a contract without limit of time as there
could not be an employment relationship “on a temporary basis.”
He
expressed the view that the nature of the employment relationship
that subsequently subsisted between the parties was one of a contract
without limit of time.
[8]
Notwithstanding that conclusion, the arbitrator proceeded to
determine whether the respondent had a legitimate expectation of
being re-engaged.
He
noted that the position that she had previously occupied had been
filled by someone else in an acting position. He concluded that the
respondent may have had a legitimate expectation of her contract
being renewed, taking into account the favourable recommendation made
by both the Human Resources Committee and the Special Executive
Committee of Council and the fact that she was appointed to act in
the same position, albeit for an indefinite period.
Consequently
he determined that the respondent had been unfairly dismissed and
that she should be reinstated to her position without loss of salary
or benefits or, alternatively, that the appellant pays damages in
lieu of reinstatement.
PROCEEDINGS
BEFORE THE LABOUR COURT
[9]
Aggrieved by the above arbitral determination, the appellant appealed
to the Labour Court. It did so on a number of grounds of appeal. As
the determination of the Labour Court was predicated on the validity
of those grounds of appeal, it is necessary to set these out in full.
I cite them verbatim:
“1.
The Honourable Arbitrator erred at law in exploring and making a
finding on the nature of the contract entered into between the
parties with effect from 9 June 2012 when such was not an issue
before him.
2.
The Honourable Arbitrator erred grossly on the facts in finding that
the contract entered into between the parties with effect from 9 June
2012 was a contract without limit of time. The Honourable
Arbitrator's findings in this respect is not supported by any
evidence and is so grossly unreasonable such that no reasonable
person properly applying his mind to the matter would have arrived at
such a decision.
3.
The Honourable Arbitrator made a finding to the fact that the
respondent had legitimate expectation of renewal of a contract based
on recommendations made during Council meetings.
4.
The Honourable Arbitrator erred at law in relying on the proceedings
and resolutions in those meetings.
The
Honourable Arbitrator erred grossly on the facts in finding that
respondent was legitimately entitled to expect the renewal of her
contract. The Arbitrator's findings in this regard are so grossly
unreasonable such that no reasonable person properly applying his
mind to the matter would have arrived at such a decision.
4.1
The Honourable Arbitrator also made a finding that the fact that the
Executive Committee made its decision subject to the approval of full
Council or the Minister did not deny respondent a legitimate
expectation since her appointment on 7 June 2012 was not blessed with
Council or ministerial approval. The Arbitrator's finding in this
regard is grossly unreasonable as:
[10]
(a) Whether or not the consent of Council or the Minister was asked
for and/or obtained for the 7 June 2012 appointment was never an
issue; In any event, the 7 June 2012 appointment was a temporary
appointment (sic) while the appointment allegedly expected is a three
(3) year appointment;
(b)
Further and any event it is the employer's prerogative to choose
which appointment to subject to approval and which not. Once one is
informed that a specific appointment is subject to approval, then
without such approval, no legitimate expectation can arise.
(c)
The Arbitrator also made a finding that a year's delay in obtaining
Council or Ministerial approval entitled respondent to legitimately
expect that her three year (3) fixed term contract will be renewed.
This finding by the Arbitrator is so grossly unreasonable such that
no person properly applying his mind to the matter would arrive to
such a decision.
4.3
The Arbitrator also held that no proof of a negative decision from
the decision maker was furnished and as a result respondent was
entitled to legitimately expect that her contract will be renewed.
The Arbitrator's decision in this respect is so grossly
unreasonable such that no person properly applying his mind to the
matter would arrive at such a decision.”
In
its submissions a quo, the appellant stated as follows:
1.
First, that the arbitrator made a finding on an issue that was not
before him and in respect of which no evidence had been led. In
particular the appellant submitted that the nature of the contract
that subsisted between the parties from 7 June 2012 was not an issue
before the arbitrator and, therefore, his finding that there existed
a contract without limit of time was irregular.
2.
Second, that the crux of the matter revolved around the question of
legitimate expectation. The recommendation to extend her contract had
not been communicated to her. It had been made by appellant's
executive committee of Council, not to her, but to the appellant. The
respondent could not, therefore, rely on a representation that was
never made to her. In any event, no representation was ever made by
the appellant so as to induce her to legitimately expect that her
contract was to be extended.
3.
Third, the recommendation made by Council was subject to acceptance
or rejection by the appellant. That recommendation was therefore “not
clear, unambiguous and devoid of relevant qualifications” as
required by the law.
4.
Lastly, the submission was made that criminal conduct involving abuse
of trust had been unearthed in the finance department and the
respondent's innocence was therefore questionable. She could not
therefore have expected her contract to be extended given that
circumstance.
[11]
In her submissions before the Labour Court, the respondent argued
that the arbitrator had correctly found that she had a legitimate
expectation to be re-engaged as finance director. It being common
cause that another person had been engaged in her place, she had
therefore been unlawfully dismissed.
The
respondent also took the point that the appeal had been noted against
findings of fact and not law. No real question of law had been
ventilated.
She
therefore prayed that the appeal should fail on that basis and that
costs be awarded in her favour.
[12]
At the hearing of the appeal, the court a quo, quite correctly,
decided to determine the point in limine raised by the respondent
that the appeal was not properly before the court as it did not
implicate any issues of law.
The
first and second grounds of appeal were abandoned by the appellant at
the commencement of the hearing. The court a quo accordingly confined
its enquiry to the remaining grounds of appeal.
[13]
The court found that the third ground of appeal raised a factual
finding since no allegation had been made that the arbitrator's
reasoning was so outrageous in its defiance of logic that no sensible
person who had applied his mind to the question to be decided would
have arrived at such a conclusion. It also found the fourth ground to
have been similarly afflicted.
Whilst
in this ground the appellant had alleged that the arbitrator's
finding had been grossly unreasonable, the court found that, on a
perusal of the record, it was apparent that the issue whether or not
the recommendation had been communicated to her had not been raised
before the arbitrator. It accordingly found that it was improper for
the appellant to have raised this issue for the first time on appeal,
the issue raised before the arbitrator having been whether the
respondent could rely on a recommendation made by a Committee of
Council to found a claim for legitimate expectation.
[14]
The court also considered the submission by the appellant that the
Executive Committee of Council had made its decision to recommend the
re-appointment of the respondent subject to approval by the full
Council and the Minister and that, in the circumstances, no
legitimate expectation could have arisen.
The
Court accepted the respondent's submission that a legitimate
expectation can arise from a representation made by, or the conduct
of, the employer.
It
determined that the placement of the respondent in an acting
position, coupled with the recommendation by the Executive Committee
of Council that her contract of employment be extended, gave rise to
that expectation. Therefore the arbitrator could not be faulted for
relying on previous conduct by the appellant, regard being had to the
fact that the two meetings that recommended her re-engagement were
held before she was re-appointed in an acting capacity.
It
found that the arbitrator's reasoning in this regard could not be
termed outrageous or irrational.
[15]
The court also considered the attack against the arbitrator's
finding that a year's delay in obtaining a determination from the
Council or the Minister on the recommendations previously made was a
basis for legitimate expectation.
It
considered that in the absence of a further averment that the finding
was so grossly unreasonable that no person properly applying his mind
to the fact would have arrived at such a decision, the attack
remained one on a factual finding.
[16]
Lastly, the court a quo found that the attack against the finding by
the arbitrator that “no proof of a negative decision from the
decision maker was furnished” and, consequently, that the
respondent legitimately expected that her contract would be renewed,
did not elaborate in what way the finding was grossly unreasonable.
Merely stating that the decision was grossly unreasonable does not
suffice.
The
court accordingly found, as it had done with the other grounds, that
the appeal was improper as it sought to impugn factual findings.
[17]
Having found that all the grounds of appeal were impugning factual
findings, the court a quo upheld the point in limine. Consequently,
it dismissed the appeal with costs. Hence the appeal to this Court.
GROUNDS
OF APPEAL
[18]
The appellant seeks an order setting aside the judgment of the court
a quo and remittal of the matter to the Labour Court for a
determination of the dispute between the parties on the merits.
Its
grounds of appeal are:
“1.
The court a quo erred in finding that the grounds of appeal relied
upon by appellant did not raise points/issues of law either in the
primary or secondary sense of the expression.
2.
The court a quo erred in finding that grounds of appeal which attack
factual findings made by a Labour Arbitrator fail by that
circumstance to disclose points/issues of law as required by statute.
3.
The court a quo erred in failing to appreciate the distinction
between the validity of grounds of appeal on the one hand and the
sufficiency thereof on the other and so erred in finding that there
were no valid grounds of appeal based on the view it took to the
effect that the grounds were meritless.
4.
Having found at any rate that there were no valid grounds of appeal,
the court a quo erred in (a) relating to the substantive issues
raised in the grounds which it had found to be non-existent; and (b),
in dismissing the appeal instead of striking it off the roll.
5.
Alternatively, the court a quo erred in finding that the Arbitrator
had properly come to the conclusion that respondent had a legitimate
expectation of continued employment with appellant and that
appellant's failure to so employ her constituted unfair dismissal.”
APPELLANT'S
SUBMISSIONS ON APPEAL
[19]
In its submissions before this Court, the appellant has argued that,
in large part, the determination of the court a quo was predicated on
a finding that the grounds of appeal had no merit. This, the
appellant submitted, was an incorrect approach.
The
court a quo was limited to an assessment of the phraseology of the
grounds of appeal, without reference, at that stage, to the merits.
Instead the court assessed the merits of the grounds of appeal in
order to determine whether or not they properly raised issues of law.
It was for that reason that the court a quo remarked at one stage
that it found “… the arbitrator's reasoning cannot be termed
outrageous or irrational.”
The
merits were not a relevant consideration in determining the validity
of the grounds of appeal. Therefore the court a quo conflated the two
processes, namely the assessment of the validity of the grounds of
appeal and their sufficiency.
[20]
Further, the appellant submitted that if, indeed, there were no valid
grounds of appeal before the court a quo, the court should have found
that there was no valid appeal before it. Consequently, it should
have simply struck the matter off roll instead of dismissing it.
A
dismissal would ordinarily suggest that the matter was considered on
the merits and was then dismissed.
[21]
The appellant has further argued that there was no legitimate
expectation that the contract would be renewed. No evidence of the
expectation was given. Moreover the resolution on which the
respondent's claim was predicated was never officially communicated
to her by the full Council of the appellant. In any event, the
resolution remained a mere recommendation which meant that Council
was at liberty either to accept or reject it.
[22]
Lastly, the appellant submitted that, having found that the
respondent was not on a fixed term contract but was on a contract
without limit of time, the question of legitimate expectation did
not, therefore, arise. Since the acting appointment did not provide
for the duration of the contract, she became a permanent employee
whose tenure could be terminated on notice as enunciated in the case
of Nyamande & Anor v Zuva Petroleum SC 43/15. The arbitrator
could not, therefore, apply section 12B of the Act which applies to a
person on a fixed term contract.
RESPONDENT'S
SUBMISSIONS ON APPEAL
[23]
In her response, the respondent has submitted that the court a quo
was correct in finding that the grounds of appeal were impugning
factual findings and that they were, therefore, not valid. It is not
sufficient, in formulating grounds of appeal, to merely assert that a
judicial officer erred at law. The particular mistake of law should
be stated and, unless substantiated, such a ground remains one of
fact.
[24]
The respondent further argued as follows:
Since
the sole issue for determination before the court a quo was whether
the arbitrator's findings on the issue of legitimate expectation
could be impugned, that issue could only be dealt with by considering
the merits. In any event, a court can interrogate the record of the
proceedings in order to resolve the question whether there is
substance to the grounds themselves. Having found that the grounds
raised factual issues and that the grounds had no merit, the court a
quo correctly dismissed the appeal.
Further,
the court a quo was correct in finding that the respondent had a
legitimate expectation that her contract would be extended.
Lastly,
the submission made by the appellant that the contract was terminated
on notice was not an issue before the court a quo and cannot,
therefore, be an issue before this Court.
ISSUES
FOR DETERMINATION
[25]
On a consideration of the record of the proceedings and the
submissions made by both parties before this Court, it seems to me
that three issues arise for determination by this Court.
(i)
The first relates to the correct approach in determining whether a
ground of appeal raises an issue of law and whether, in so
determining, it is permissible for a court to have regard to the
merits of the matter in order to make that determination.
(ii)
The second is whether the grounds of appeal before the Labour Court
raised questions of law, i.e. whether they were valid grounds of
appeal.
(iii)
The third is whether the court a quo was correct in dismissing the
appeal once it found, as it did, that the grounds of appeal were not
valid.
I
consider each of the issues in turn.
DETERMINATION
OF THE VALIDITY OF GROUNDS OF APPEAL
[26]
There is a dispute in this matter on the correct approach by a court
in determining whether a ground of appeal raises an issue of law.
There is, therefore, need to clarify the correct approach in
assessing whether a ground of appeal complies with the legal
requirement that it must be predicated on an issue of law.
[27]
The term “question of law” is used in three distinct, though
related, senses:
(i)
First, it means a question which the law itself has authoritatively
answered to the exclusion of the right of the court to answer the
question as it thinks fit;
(ii)
Second, it means a question as to what the law is; and
(iii)
Third, any question which is within the province of the judge instead
of the jury or assessors;
Muzuva
v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S), 220 D–F; Sable
Chemical Industries Ltd v David Peter Eastenbrook SC 18/10.
[28]
Used in the three related senses referred to above, the term causes
no difficulty. It is, however, used in a fourth sense, that is, where
the finding complained of is so outrageous in its defiance of logic
or accepted moral standards that no sensible person who has applied
his mind to the question to be decided could have arrived at such a
conclusion.
The
nature and circumstances of the case must be such that it is
reasonably probable that the tribunal would not have determined as it
did had there been no misdirection; in other words that the
determination was irrational.
A
serious misdirection on the facts amounts to a misdirection in law -
Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC), 670D.
[29]
The dispute in this case centres around how an appellant, who alleges
a misdirection on the facts, should formulate such a ground in his
notice of appeal.
To
answer this question, I proceed to look at cases previously decided
by this Court on the subject.
[30]
In Reserve Bank of Zimbabwe v Granger & Anor SC 34/01,
MUCHECHETERE JA remarked as follows:
“An
appeal to this Court is based on the record. If it is to be related
to the facts there must be an allegation that there has been a
misdirection on the facts which is so unreasonable that no sensible
person who applied his mind to the facts would have arrived at such
decision. And a misdirection of facts is either a failure to
appreciate a fact at all or a finding that is contrary to the
evidence actually presented …”
[31]
In Zvokusekwa v Bikita Rural District Council SC 44/15, this Court
further added:
“(22)…
the remarks in Granger's case (supra) need to be qualified, to the
extent that they may be interpreted as saying that, to constitute a
point law, in all cases where findings of fact are attacked, there
must be an allegation that there was a misdirection on the facts
which was so unreasonable that no sensible person properly applying
his mind would have arrived at such a decision.
One
must, I think, be guided by the substance of the grounds of appeal
and not the form….
What
is important at the end of the day is that the grounds must disclose
the basis upon which the decision of the lower court is impugned in a
clear and concise manner.”
[32]
The pertinent question in the present case is this. In determining
whether a ground of appeal raises an issue of law, should a court be
confined to the wording of the ground of appeal only or should it,
additionally, have recourse to the record or the merits of the case?
[33]
In Chinyange v Jaggers Wholesalers SC 24/04 GWAUNZA JA (as she then
was), writing for the court, stated at page 2 of the cyclostyled
judgment:
“…
.
The appellant must in other words not only allege, but also show,
that the Labour Court misdirected itself on a point of law.”
At
page 3, the learned judge continued:
“The
appellant has not alleged nor shown, that the Labour Court
misdirected itself, nor that such misdirection, being based on
findings of fact, was so unreasonable that no sensible person
applying his mind to the facts would have arrived at such a
conclusion.”
[34]
In Mutsuta and Anor v Cagar (Private) Limited SC 47/09, SANDURA JA
stated at page 6 of the cyclostyled judgment:
“Applying
the principles set out in the three cases cited above, I have no
doubt in my mind that the appeal raises questions of law. There are
allegations in the grounds of appeal that the Labour Court committed
misdirections on the facts which are so unreasonable that no sensible
person who had applied his mind to the facts would have arrived at
such a decision. The appeal is, therefore, properly before the
court.”
[35]
In Sable Chemical Industries Limited (supra), this Court remarked at
page 5 of the judgment:
“The
first ground of appeal is that the Labour Court erred on a question
of law in holding that the disciplinary committee was improperly
constituted. It is the respondent's submission that this question
is one of fact and not law. I agree with the respondent's
submission in this regard.”
And
at page 7:
“There
is no suggestion by the appellant that the court a quo misdirected
itself on the facts in coming to the conclusion that the committee
was not properly constituted and that such misdirection constitutes a
question of law. I would agree with the respondent that this ground
of appeal raises a question of fact and not law.”
[36]
It is correct that, in the Sable Chemical Industries Limited case
(supra), the impression was created that a court can have regard to
the merits in order to determine the validity of a ground of appeal.
It
is clear, however, on a proper reading of the case that, in fact, the
court determined the validity of the grounds of appeal based only on
the specific allegations made in the grounds of appeal and not the
merits of the matter.
[37]
Everything considered, therefore, the correct approach, in my view,
is that in determining whether a ground of appeal raises an issue of
law, a court will confine itself to the wording of the ground of
appeal only and not to the merits of the matter.
The
merits of the matter only become relevant if a ground of appeal is
found to be valid.
Whether
or not an appellant's case has merit and whether or not the appeal
should succeed are issues to be determined separately and only after
a finding on the validity of the grounds of appeal.
[38]
A ground of appeal which attacks findings of fact must, therefore,
not only allege that the lower court misdirected itself on the facts
but must go further and show how that misdirection came about.
Merely
alleging a misdirection without further substantiation would not be
enough as the attack would remain one against a factual finding.
In
other words, in alleging a misdirection on the facts, the ground of
appeal must also show in what way those findings of fact are
irrational.
To
the extent therefore that the decision of this Court in the Sable
Chemical Industries Limited case (supra) may have created an
impression to the contrary, it does not reflect the correct approach
and should therefore, to that extent, not be followed.
THE
GROUNDS OF APPEAL BEFORE THE COURT A QUO - WHETHER VALID
[39]
This is really the crux of the matter. To answer the question it is
necessary to look at the individual grounds that were considered by
the court.
The
judgment of the court a quo reflects that grounds one and two were
abandoned at the hearing of the matter. Essentially, therefore, there
were three grounds of appeal before the court a quo. The court a quo
found that these attacked factual findings.
I
proceed to consider each of these in turn.
[40]
The third ground of appeal before the Labour Court was couched in the
following manner:
“3
The Honourable Arbitrator made a finding to the fact that the
respondent had legitimate expectation of renewal of the contract
based on the recommendations made during council meetings. The
Honourable Arbitrator erred at law in relying on the proceedings and
resolutions of these meetings.”
Whilst
the ground could have been more elegantly phrased, there is no doubt
in my mind that it did, in fact, raise the question whether the
arbitrator could base his finding that the respondent had a
legitimate expectation of re-engagement on proceedings and
resolutions of a council meeting.
As
stated in the Zvokusekwa case (supra), one should be guided by the
substance rather than the form.
I
am satisfied that the court a quo was wrong in treating this ground
as one attacking a finding of fact.
[41]
The fourth ground of appeal before the court a quo read as follows:
“The
Honourable Arbitrator erred grossly on the facts in finding that the
respondent was legitimately entitled to expect the renewal of her
contract. The arbitrator's findings in this regard are so grossly
unreasonable such that no reasonable person properly applying his
mind to the matter would have arrived at such a decision.”
The
gross aberration on the facts was not articulated. It remained a bald
allegation impugning findings of fact. It did not state how and in
what way the arbitrator grossly erred in reaching the conclusion that
was sought to be impugned.
In
these circumstances, it remained an attack against a simple finding
of fact and, clearly, does not raise any issue of law.
[42]
Ground 4.1 read:
“4.1
The Honourable arbitrator made a finding that the fact that the
Executive Committee made its decision subject to the approval of full
council or the Minister did not deny respondent legitimate
expectation since her appointment on 7 June 2012 was not blessed with
council or ministerial approval. The arbitrator's finding in this
regard is grossly unreasonable as:
(a)
Whether or not the consent of council or the Minister was asked for
and/or obtained for the 7 June 2012 appointment was never an issue;
(b)
In any event, the 7 June 2012 appointment was a temporary appointment
while the appointment allegedly expected is a 3 (three) year
appointment;
(c)
Further and any event it is the employer's prerogative to choose
which appointment is subject to approval and which not (sic). Once
one is informed that a specific appointment is subject to approval,
then without such approval, no legitimate expectation can arise.”
[43]
The difficulty with this ground was its lack of particularity and
precision. It sounded argumentative.
Unlike
in appeals from the High Court, there has not been a requirement, in
labour cases, that the grounds of appeal must be clear and concise.
However, the Labour Court Rules 2017, in LC 4, now require grounds to
be clear and concise.
This
was not a requirement at the time the present appeal was argued
before the Labour Court.
In
my view, the ground, though not formulated with precision, did indeed
raise an issue of law.
What
the ground says, in a nutshell, is that, whilst the recommendation
that the respondent's contract be renewed was subject to approval
by both the Council and the Minister, this did not affect the
decision of the appellant to appoint her in an acting position for an
indefinite period.
The
appellant was further saying that the issue whether or not the
consent of the Council or Minister was sought and obtained was not an
issue before the arbitrator and that, in any event, the appointment
was temporary.
Lastly
that, once an employee is advised that a re-engagement is subject to
approval, then, without such approval, no legitimate expectation of
re-engagement can, in this situation, arise.
[44]
I am satisfied that, properly considered, ground 4.1 did in fact
raise issues of law and that the court a quo was wrong in reaching a
contrary conclusion.
[45]
Ground 4.2 stated and I quote:
“4.2.The
arbitrator also made a finding that a year's delay in obtaining
council or ministerial approval entitled respondent to legitimately
expect that her three (3) year fixed term contract will be renewed.
This finding by the arbitrator is so grossly unreasonable such that
no person properly applying his mind to the matter would arrive at
such a decision.
4.3
The arbitrator also held that no proof of a negative decision from
the decision maker was furnished and as a result respondent was
entitled to legitimately expect that her contract will be renewed.
The Arbitrator's decision in that respect is so grossly
unreasonable such that no person applying his mind to the matter
would arrive at such a decision.”
What
the appellant sought to challenge in the court a quo was the
conclusion reached by the arbitrator on the facts which were before
him.
The
appellant was saying delay, on its own, could not have led the
respondent to believe that her employment would be extended by a
further three years and that a conclusion to that effect would be
irrational.
The
court a quo was therefore wrong in coming to the conclusion that
grounds 4.2 and 4.3 did not raise any questions of law.
[46]
In all the circumstances, therefore, I am satisfied that, save for
the fourth ground of appeal, the court a quo was not correct when it
non-suited the appellant on the preliminary point raised that the
appeal before that court was not predicated on issues of law.
Having
made that decision, the court a quo went on to dismiss the appeal in
its entirety.
That
this was also improper goes without saying.
COURT
A QUO SHOULD HAVE STRUCK THE MATTER OFF THE ROLL
[47]
One of the complaints by the appellant is that once the court a quo
had come to the conclusion that the appeal before it was a nullity on
account of defective grounds of appeal, it should not have dismissed
the appeal but rather struck the matter off the roll.
I
agree entirely with this submission.
Once
the court had determined that all the grounds of appeal before it
were attacking factual findings and not issues of law, it should have
found that there was, therefore, no proper appeal before it. And if
there was no proper appeal before it, there was, in fact, nothing
before it. And if there was nothing before the court, there was
therefore nothing to dismiss.
The
only appropriate course of action, in these circumstances, would have
been to strike the matter off the roll.
An
appellant whose matter is struck off would not be without a remedy.
He can still apply for condonation and extension of time in which to
appeal. But if a matter is dismissed, then, in reality, that is a
final determination.
DISPOSITION
[48]
I am satisfied that the court a quo was wrong in determining, as it
did, that the grounds of appeal did not, in their entirety, raise
issues of law. The appeal must therefore succeed.
The
appellant has largely been successful and is, therefore, entitled to
an award of the costs of this appeal.
[49]
In the result, it is ordered as follows:
1.
The appeal succeeds in part, with the respondent paying the costs of
the appeal.
2.
The judgment of the court a quo is set aside and in its place the
following is substituted:
“Save
in respect of ground 4, the preliminary point raised by the
respondent in respect of the remaining grounds is dismissed.”
3.
The matter is remitted to the Labour Court for a determination on the
merits.
GUVAVA
JA: I agree
MAVANGIRA
JA: I agree
Dube,
Manikai & Hwacha, appellant's legal practitioners
Messrs
Chambati, Mataka & Makonese, respondent's legal practitioners
