Phiri and Others vs Crave Clean Bakery (Pvt) Ltd and Another (LC/H/1058/25) [2026] ZWLC 8 (30 January 2026)

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H//26 HELD AT HARARE 22 JANUARY 2026 CASE NO. LC/H/1058/25 IN THE MATTER BETWEEN: ROBERT PHIRI AND FOUR OTHERS APPELLANTS AND CRAVE CLEAN BAKERY (PVT) LTD FIRST RESPONDENT ELVIS MACHIKITI N.O. SECOND RESPONDENT Before Honourable Mr. Justice L.M. Murasi For Appellants Ms. T. Nyanhongo No Appearance for Respondents MURASI J., This is an appeal against the decision of the Arbitrator. Appellants were employed by the First Respondent. Subsequent to the termination of their employment, Appellants referred their matter for adjudication which culminated in it being referred to the Second Respondent. Before the Second Respondent, two terms of reference were put forwar5d for determination. These were as follows: Whether or not the Claimants were underpaid and, if so, the remedy thereof;Whether or not the Claimants’ contracts were unlawfully terminated? If so, the remedy thereof. The Second Respondent dismissed the Appellants’ claims. Appellants are dissatisfied with the result and have approached this Court for relief. Appellants’ grounds of appeal are formulated as follows: The Honourable Arbitrator grossly erred and misdirected himself in confirming the termination of the Appellants’ contracts of employment in the circumstances where the Appellants were not dismissed in terms of a code of misconduct and were accordingly unfairly dismissed.The Honourable Arbitrator erred and misdirected himself in making a finding that the appellants’ acceptance of terminal package marked the end of the employment relation when evidence was led to the effect that the Appellants were unduly influenced to accept the terminal package and only 3rd and 4th Appellants accepted terminal benefits.The Arbitrator grossly erred and misdirected himself in making a finding that the other Appellants authorised their representative, one Proud Hamandawana to accept payment of overtime when the Appellants had demonstrated that they never authorised him to accept the payment and denied any relationship with him.The Learned Arbitrator grossly erred and misdirected himself at law in finding that the Appellants’ contracts of employment were not unlawfully terminated without giving reasons for that finding. The Court makes the observation from the outset that the Respondents did not file any documents in opposition and were not in attendance on the date of the hearing. At the commencement of the hearing, Ms. Nyanhongo stated that she was abandoning the second and fourth grounds of appeal as these were similar to the first and third grounds of appeal. She submitted that the termination of the Appellants’ contracts of employment was not in accordance with section 12 B (2) of the Labour Act (Chapter 28:01). She further submitted that if the Appellants had absconded from work as alleged by the employer, there was need to hold a disciplinary hearing in the circumstances and that this had not been done. She added that the Appellants had been verbally informed by Mr. Mutisi that their contracts of employment had been terminated. She further stated that in stating that Appellants had absconded from employment, Mr. Mutisi had misled the Arbitrator. Ms. Nyanhongo added that the Appellants had been told not to report for duty sometime in October 2023. Asked by the Court to reconcile the averment of dismissal with the letter addressed to Madanha on 20 August 2023. Ms. Nyanhongo made an about turn and stated that in fact Madanha had not been dismissed but the termination of employment had been mutually agreed upon. She also extended the same averments to Appellant Chenjerai who had signed a letter dated 2 November 2023. Ms. Nyanhongo reiterated the fact that Proud Hamandawana did not represent the Appellants and must have connived with First Respondent in writing the Affidavit filed of record. ANALYSIS The fact that an appellate court will only interfere with the decision of a tribunal a quo where there is evidence of a misdirection is trite. Many a precedent has reiterated this principle. In State v Chikumbirike 1986 (2) ZLR 145 (S) at 146 F-G, BECK JA had this to say: “The principle is therefore well established. It follows that in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.” This principle has been followed in such cases as Barros & Anor v Chimphonda 1999 (1) ZLR 59 and ZINWA v Mwoyounotsva 2015 (2) ZLR 935. The Court asked Ms. Nyanhongo about the failure to contest the findings of the Arbitrator in respect of the first term of reference. In response, she conceded that there was nothing wrong in the decision about the first term of reference. She however took issue with the findings of the Arbitrator as regards the termination of the contracts of employment. The Court should also make the observation that Ms. Nyanhongo conceded that the contracts of employment for the third and fourth Appellants were procedurally terminated. The response was as follows: “In respect of Tembo and Madanha they consented to termination of employment contracts.” Averments were made that Respondent, working in connivance with Hamandawana made up the affidavit which showed that the other Appellants had been paid their terminal benefits. It was also indicated in argument that the Appellants had nothing to do with Hamandawana and he was not representing them. The Court asked Ms, Nyanhongo as to why the Appellants had not categorically stated in documents before the Arbitrator that they had nothing to do with Hamadawana. It was also suggested that the First Respondent must have given to Hamandawana the Appellants’ details which appeared in the affidavit concerned. A reading of the record shows that these remained allegations. No evidence was tendered by the Appellant to this effect. In fact, one of the grounds of appeal which was later abandoned by Appellants’ Counsel was that “Appellants were unduly influenced to accept the terminal package.” In fact, the Arbitrator went to some length explaining the issue of waiver as it was one of the averments that was placed before him. The issue of undue influence was not placed before the Arbitrator and could not have dealt with it. There is no evidence to show who pressured the Appellants and at what stage. In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows: “It follows therefore that where a party makes bold assertions not backed by evidence and the same are denied by the party against whom they are made, such bold allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.” Generally, in this jurisdiction, it is acknowledged that a party alleging a fact to have occurred is duty bound to prove such fact as the onus to prove rests on that party. In the celebrated case of Pillay v Krishna 1946 AD 946, DAVIES AJA had this to say at 952: “But there is a third rule which Voet states ‘He who asserts, proves and not he who denies since denial of a fact cannot naturally be proved provided it is a fact that is denied and the denial is absolute.’ The onus is on the person who alleges something and not on whose opponent who merely denies it.” A reading of the record shows that there was no attempt by the Appellants to prove the averments sought to be relied upon in this appeal. No particular area of misdirection was motivated by the Appellants in the appeal. Indeed, the Court has been unable to note any misdirection in the arbitral award. The appeal ought to be dismissed. In the result, the appeal, being devoid of merit, is hereby dismissed with no order as costs. Mufari & Paradzayi Legal Practitioners- Appellants’ legal practitioners. 2 IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H//26 HELD AT HARARE 22 JANUARY 2026 CASE NO. LC/H/1058/25 IN THE MATTER BETWEEN: ROBERT PHIRI AND FOUR OTHERS APPELLANTS AND CRAVE CLEAN BAKERY (PVT) LTD FIRST RESPONDENT ELVIS MACHIKITI N.O. SECOND RESPONDENT Before Honourable Mr. Justice L.M. Murasi For Appellants Ms. T. Nyanhongo No Appearance for Respondents MURASI J., This is an appeal against the decision of the Arbitrator. Appellants were employed by the First Respondent. Subsequent to the termination of their employment, Appellants referred their matter for adjudication which culminated in it being referred to the Second Respondent. Before the Second Respondent, two terms of reference were put forwar5d for determination. These were as follows: Whether or not the Claimants were underpaid and, if so, the remedy thereof; Whether or not the Claimants’ contracts were unlawfully terminated? If so, the remedy thereof. The Second Respondent dismissed the Appellants’ claims. Appellants are dissatisfied with the result and have approached this Court for relief. Appellants’ grounds of appeal are formulated as follows: The Honourable Arbitrator grossly erred and misdirected himself in confirming the termination of the Appellants’ contracts of employment in the circumstances where the Appellants were not dismissed in terms of a code of misconduct and were accordingly unfairly dismissed. The Honourable Arbitrator erred and misdirected himself in making a finding that the appellants’ acceptance of terminal package marked the end of the employment relation when evidence was led to the effect that the Appellants were unduly influenced to accept the terminal package and only 3rd and 4th Appellants accepted terminal benefits. The Arbitrator grossly erred and misdirected himself in making a finding that the other Appellants authorised their representative, one Proud Hamandawana to accept payment of overtime when the Appellants had demonstrated that they never authorised him to accept the payment and denied any relationship with him. The Learned Arbitrator grossly erred and misdirected himself at law in finding that the Appellants’ contracts of employment were not unlawfully terminated without giving reasons for that finding. The Court makes the observation from the outset that the Respondents did not file any documents in opposition and were not in attendance on the date of the hearing. At the commencement of the hearing, Ms. Nyanhongo stated that she was abandoning the second and fourth grounds of appeal as these were similar to the first and third grounds of appeal. She submitted that the termination of the Appellants’ contracts of employment was not in accordance with section 12 B (2) of the Labour Act (Chapter 28:01). She further submitted that if the Appellants had absconded from work as alleged by the employer, there was need to hold a disciplinary hearing in the circumstances and that this had not been done. She added that the Appellants had been verbally informed by Mr. Mutisi that their contracts of employment had been terminated. She further stated that in stating that Appellants had absconded from employment, Mr. Mutisi had misled the Arbitrator. Ms. Nyanhongo added that the Appellants had been told not to report for duty sometime in October 2023. Asked by the Court to reconcile the averment of dismissal with the letter addressed to Madanha on 20 August 2023. Ms. Nyanhongo made an about turn and stated that in fact Madanha had not been dismissed but the termination of employment had been mutually agreed upon. She also extended the same averments to Appellant Chenjerai who had signed a letter dated 2 November 2023. Ms. Nyanhongo reiterated the fact that Proud Hamandawana did not represent the Appellants and must have connived with First Respondent in writing the Affidavit filed of record. ANALYSIS The fact that an appellate court will only interfere with the decision of a tribunal a quo where there is evidence of a misdirection is trite. Many a precedent has reiterated this principle. In State v Chikumbirike 1986 (2) ZLR 145 (S) at 146 F-G, BECK JA had this to say: “The principle is therefore well established. It follows that in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.” This principle has been followed in such cases as Barros & Anor v Chimphonda 1999 (1) ZLR 59 and ZINWA v Mwoyounotsva 2015 (2) ZLR 935. The Court asked Ms. Nyanhongo about the failure to contest the findings of the Arbitrator in respect of the first term of reference. In response, she conceded that there was nothing wrong in the decision about the first term of reference. She however took issue with the findings of the Arbitrator as regards the termination of the contracts of employment. The Court should also make the observation that Ms. Nyanhongo conceded that the contracts of employment for the third and fourth Appellants were procedurally terminated. The response was as follows: “In respect of Tembo and Madanha they consented to termination of employment contracts.” Averments were made that Respondent, working in connivance with Hamandawana made up the affidavit which showed that the other Appellants had been paid their terminal benefits. It was also indicated in argument that the Appellants had nothing to do with Hamandawana and he was not representing them. The Court asked Ms, Nyanhongo as to why the Appellants had not categorically stated in documents before the Arbitrator that they had nothing to do with Hamadawana. It was also suggested that the First Respondent must have given to Hamandawana the Appellants’ details which appeared in the affidavit concerned. A reading of the record shows that these remained allegations. No evidence was tendered by the Appellant to this effect. In fact, one of the grounds of appeal which was later abandoned by Appellants’ Counsel was that “Appellants were unduly influenced to accept the terminal package.” In fact, the Arbitrator went to some length explaining the issue of waiver as it was one of the averments that was placed before him. The issue of undue influence was not placed before the Arbitrator and could not have dealt with it. There is no evidence to show who pressured the Appellants and at what stage. In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows: “It follows therefore that where a party makes bold assertions not backed by evidence and the same are denied by the party against whom they are made, such bold allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.” Generally, in this jurisdiction, it is acknowledged that a party alleging a fact to have occurred is duty bound to prove such fact as the onus to prove rests on that party. In the celebrated case of Pillay v Krishna 1946 AD 946, DAVIES AJA had this to say at 952: “But there is a third rule which Voet states ‘He who asserts, proves and not he who denies since denial of a fact cannot naturally be proved provided it is a fact that is denied and the denial is absolute.’ The onus is on the person who alleges something and not on whose opponent who merely denies it.” A reading of the record shows that there was no attempt by the Appellants to prove the averments sought to be relied upon in this appeal. No particular area of misdirection was motivated by the Appellants in the appeal. Indeed, the Court has been unable to note any misdirection in the arbitral award. The appeal ought to be dismissed. In the result, the appeal, being devoid of merit, is hereby dismissed with no order as costs. Mufari & Paradzayi Legal Practitioners- Appellants’ legal practitioners. 2 2