Inter-Agric Private Limited v Allan Mudavanhu and 12 Others

The respondent, Allan Mudavanhu, was employed by the appellant as head of its clothing factory division with a contract to source external garment making contracts for commission. On 11 July 2006, he was charged with misconduct including poor time-keeping, habitual absenteeism, failure to meet work standards and targets, and unilaterally increasing employee numbers without authority. Following a disciplinary hearing, he was found guilty on all charges and dismissed with effect from 16 July 2006. On 14 July 2008, Mudavanhu filed a grievance alleging unfair dismissal with a labour officer. Following failed conciliation, the matter was referred to compulsory arbitration. The arbitrator upheld the unfair dismissal claim and awarded in favour of Mudavanhu and twelve other former employees. The appellant's appeal to the Labour Court was unsuccessful. The appellant then appealed to the Supreme Court.

• Whether the arbitrator had jurisdiction to determine claims of the twelve other respondents who did not appear before him
• Whether Mudavanhu could legally represent the twelve other respondents before the arbitrator under s 4 of the Labour (Settlements of Disputes) Regulations S.I. 217 of 2003
• Whether the applicable Code of Conduct was for the agricultural or clothing industry
• Whether the Disciplinary Committee was properly constituted
• Whether adequate notice of the disciplinary hearing was given to Mudavanhu
• Whether the award of damages was proper in the absence of evidence regarding quantum and the currency awarded

The appeal was allowed with costs. The order of the Labour Court was set aside and substituted with an order that: (i) the appeal is allowed with costs; (ii) the arbitrator's award is set aside; and (iii) the decision of the disciplinary committee dismissing the respondent from employment is upheld.

The binding legal principles established are: (1) Section 4 of the Labour (Settlements of Disputes) Regulations S.I. 217 of 2003 allows representation before a labour officer but does not extend to representation before an arbitrator - these are distinct functions under the Labour Act; (2) An arbitrator is confined to his terms of reference and can only determine disputes between parties properly referred to him by the labour officer; (3) Awards of damages for unfair dismissal must be based on evidence of actual earnings and the court cannot simply pluck figures from the air (applying Redstar Wholesalers v Mabika SC 52/05); (4) When assessing damages, the court must hear evidence about the length of time the dismissed employee would reasonably take to find alternative employment; (5) A dismissed employee is legally obliged to mitigate damages by finding alternative employment at the earliest opportunity (applying Nyaguse v Mkwasini Estates (Pvt) Ltd 2000 (1) ZLR 571 (S)); (6) Compensation for dismissal must be calculated at the rate applicable at the time of dismissal.

The Court observed that it would have been appropriate for the Labour Court to find that evidence of inadequate notice was confirmed by the record, but noted that the court failed to do this. The Court also commented that it is not appropriate for an appeal court to confirm there was no error on the part of a lower tribunal without setting out the basis for its finding of correctness. The Court noted that the Labour Court merely paid lip service to the arbitrator's findings regarding the improper constitution of the Disciplinary Committee without interrogating the basis for that conclusion.

This case is significant in Zimbabwean labour law for clarifying several important procedural and substantive principles: (1) the distinction between representation before a labour officer versus an arbitrator, and the limits of the Labour (Settlements of Disputes) Regulations; (2) the principle that arbitrators are confined to their terms of reference and cannot adjudicate claims not properly referred to them; (3) the requirement that awards of damages for unfair dismissal must be based on actual evidence of earnings and cannot be plucked from thin air; (4) the principle that employees must mitigate their damages by finding alternative employment; (5) the requirement that compensation must be calculated at the rate applicable at the time of dismissal; and (6) the duty of appellate courts to properly interrogate the factual and legal basis of lower tribunal findings rather than merely paying lip service to them.