Bauline Butcheries v Dzikamai Matekenya and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/43/2013
HARARE, 18 AND 20 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                JUDGMENT NO. LC/MC/43/2013

HARARE, 18 AND 2O NOVEMBER 2013	    		  CASE NO. LC/MC/82/2013

In the matter between:-

BAULINE BUTCHERIES						Applicant

And

DZIKAMAI MATEKENYA						1st Respondent

And

ARBITRATOR CHARINDEGUTA				2nd Respondent

Before The Honourable F.C. Maxwell,: Judge

(IN CHAMBERS)

MAXWELL J.;

This is an application in terms of Section 92E (3) of the Labour Act [Chapter 28:01] for stay of an arbitral award in favour of the 1st Respondent.  The award was made by the 2nd Respondent on the 12 July 2013.  Applicant was ordered to reinstate 1st Respondent with full wages and benefits amounting to $2 280,00.  If reinstatement is not an option in the following twenty one working days, Applicant was to pay damages in lieu of reinstatement the quantum of which the parties may agree, failure which either party may approach the Arbitrator for quantification.  Applicant was also ordered to pay $ 684 as cash in lieu of protective clothing.  All in all Applicant was ordered to pay a total of $3 016,00 by 30 August 2013.

The Applicant noted an appeal against the arbitral award on 13 November 2013.  The appeal is yet to be heard.  Applicant fears that the 1st Respondent may approach the High Court seeking to register the award for purposes of enforcing it.  As stated by Chatukuta J in the case of SubSaharan Management Solutions P/L v Sirutita Investment (Pvt) Ltd and 2 Others HH 249/12, the whole purpose of stay of execution proceedings pending an appeal is to prevent irreparable prejudice from being suffered by the prospective Appellant.  The Court must therefore be satisfied that injustice would be caused if stay is not granted.  In considering that injustice is not occasioned, The Court would also have regard to the prospects of success on appeal, the potentiality of irreparable harm or prejudice to either of the parties and the balance of hardship or inconvenience. In casu there is a probability that Appellant may succeed on appeal.  The Arbitrator dismissed an application for rescission of an award issued in default.  Applicant is raising ill health as the reason for failure to attend the arbitration proceedings.  The order dismissing the application for rescission is raising the fact that chances of success of the application on the merits of the matter are nil.  In my view an appellate Court may reach a different conclusion.  Applicant is raising an issue of the application of a wrong code of conduct.  He alleges that the National Employment Council for Commercial Sectors Code of conduct was applicable yet the Arbitrator made deliberations based on the National Code of Conduct.

Applicant has submitted that irretrievable prejudice will result if execution of the award is allowed to go through before determination of the appeal as there are high prospects of success on appeal.  The order sought by the Applicant is only being sought in the interim.  If the Applicant’s appeal fails the 1st Respondent can always proceed to execute on the arbitral award.  The balance of convenience favours the granting of the interim relief.

Accordingly it is ordered that:

The execution of the arbitral award handed down on 12 July 2013 by the 2nd Respondent be and is hereby stayed pending the hearing and determination of the appeal matter under reference LC/MC/82/13.