14 February 2013

Zimbabwe: Appeals Against Arbitration Awards


Both workers and employers have been found wanting when it comes to the issue of appealing against arbitration awards. In some of the notices of appeal, no grounds of appeal are listed in their usual format, and one has to read through to pick up the grounds.

However, there are two areas of inquiry that should interest readers of this column.

The first is whether it is possible to appeal against an arbitral award on findings of facts. Section 98 (10) of the Labour Act (Chapter 28:01) says that: "An appeal on a question of law shall lie to the Labour Court from any decision of an Arbitrator in terms of this section."

In terms of this provision, any appeal from the decision of an arbitrator has to be on a point of law. The grounds of appeal must unequivocally say that the appeal is on a point of law and also say what the point of law is.

The second line of enquiry would be whether an appellant would not be mixing appeal and review matters, that is, substantive and procedural issues and therefore failing to appreciate the difference between the two procedures.

There two situations at which the Labour Act has said that an appeal has to be on a point of law. The first one is an appeal from a decision of an arbitrator appointed in terms of the Act (Section 98 (10)).

The second is when one appeals to the Supreme Court from a decision of the Labour Court (Section 92F (1)). Therefore, any case that deals with what constitutes a point of law when appealing to the Supreme Court will also apply as to what constitutes a point of law when appealing to the Labour Court.

As to what constitutes a point or question of law, there are two cases within the Labour Court jurisdiction. These are Sable Chemical Industries Limited versus David Peter Easterbrook SC 18/10 (per Garwe JA), and Norman Matsuta and Tonderai Katsande versus Cargar (Private) Limited SC 47/09 (per Sandura JA).

At pages 4 and 5 of the cyclostyled judgment Garwe JA lists three senses in which the term "question of law" is used, which are the following.

1. "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 in accordance with what is considered to be the truth and justice of the matter."

2. "A question as to what the law is. Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter."

3. "Any question which is within the province of the Judge instead of the jury is called a question of law."

In both cited cases, it is also mentioned that: "...a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law." (per Garwe JA at page 5).

Sandura JA referred to the case of Reserve Bank of Zimbabwe versus Corrine Granger and Martha Mataruka SC 34/01 where Muchechetere JA, at page 5 to 6 of the cyclostyled judgment, says with concurrence of McNally JA and Sandura JA.

"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 a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented."

There is an example of a case in which Ngaatendwe Muchapirei who was employed by National Foods appealed to the Labour Court against the decision of an Arbitrator. The background to the appeal is that Muchapirei was employed as a statistician in March 2009. The position was equivalent to a managerial position.

In September 2009, he offered his resignation and it was accepted. While serving his notice he was offered another post as Area Manager, which he took up.

According to National Foods, this post was for eight months terminating on August 30, 2010. On August 12, 2010 National Foods served Muchapirei with a notice of termination of the contract on August 30, 2010. The contract was duly terminated on that date.

However, Muchapirei alleged that his contract was permanent and that therefore this was an unfair dismissal. The Arbitrator held that it was a fixed term contract. In his appeal to the Labour Court, Muchapirei argued the Arbitrator erred in that he accepted as being sufficient, authentic and as being duly served upon the appellant a letter from National Foods stating that he was on a fixed term contract without holistically considering the facts and submissions before him.

Muchapirei further argued the Arbitrator, in his award, placed great emphasis on his previous resignation, which was common cause as opposed to considering the contractual relationship in dispute. He submitted that the Arbitrator considered issues and facts that were not before him. In response, National Foods pointed out that there was no appeal before the court as one cannot appeal against an arbitral award on finding of facts.

It also said that the Arbitrator had acted within terms of reference, which required him to determine whether Muchapirei had been unfairly dismissed. Thirdly, it was submitted that the appeal had no merit, even by way of a technicality. Muchapirei had four opportunities to state and show how this appeal was on a point of law. This was on notice of appeal, on his answering affidavits to the response by National Foods, on heads of argument, and in court when the company insisted that the appeal was not on a point of law.

It is unfortunate that Muchapirei did not understand the argument. This appears to be a clear failure to grasp the issues at hand.

While it may not be a requirement to mention in the grounds of appeal that "the Arbitrator erred in that..." such mentioning tends to show that one is alive to the requirement of the law. If one does not mention that, then the party must clearly show in other words that the appeal is on a point of law.

Further, if the appeal is to be on facts, the precedent cases are clear that the party must allege that there had been gross misdirection on the facts as to amount to a mis-direction at law. The way the grounds of appeal were couched by Muchapirei left a lot to be desired. It left the court with having to sift through the rubble in order to see if there is a point of law being raised.

Accordingly, Labour Court president Mr Custom Kachambwa dismissed Muchapirei's appeal with costs.

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