Chirumhanzu Rural District Council v Zimbabwe Rural District Council Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/145/16
HELD AT HARARE 15 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/145/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/145/16

HELD AT HARARE 15 FEBRUARY 2016			CASE NO LC/H/539/15

& 18 MARCH 2016

In the matter between:

CHIRUMHANZU RURAL DISTRICT COUNCIL				Appellant

And

ZIMBABWE RURAL DISTRICT COUNCIL WORKERS UNION		Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr F Mahere (Legal Practitioner)

For Respondent		Mr J B Chaka (Trade Unionist)

MURASI, J:

This is an appeal from the arbitral award of Honourable Nhongo.  The facts are that appellant and respondent were embroiled in a labour dispute over the non-remittal of union dues to the respondent.  The matter went before the Designated Agent of the respective Employment Council.  The matter was later referred to the arbitrator who found in favour of the respondent.  The appellant is dissatisfied with this ruling and has approached this court for relief.

Appellant’s grounds of appeal are as follows:

The Honourable arbitrator erred in law when he, having accepted the fact that the appellant had been overcharged by an amount of US$4 816.69, proceeded to find that the appellant was obliged to pay the amount of money indicated herein.  The Honourable arbitrator’s aforesaid finding is so outrageous in its defiance of logic that no reasonable court applying its mind to the question would have reached that conclusion and therefore amounts to an error of law.

The Honourable arbitrator erred in law when he determined that the failure by the appellant to timeously advise the respondent of the fact that certain individuals had left the appellant’s employ formed a basis for penalising the appellant with an award for the payment of the overcharges amount of US$4816.69.  The finding in question is so outrageous in its defiance of logic that no reasonable court applying its mind to the question would have arrived at that finding and therefore amounts to an error of law.

At the commencement of the proceedings Mr Mahere sought to request a

postponement of the matter stating that Mr Mutasa  who was supposed to handle the matter was engaged in the High Court.  The court inquired as to when Mr Mutasa had become aware of that predicament.  Mr Mutasa stated that it should have been in January 2016.  The court then asked as to why he had not written to the Registrar stating that he would be unable to handle the matter at the Labour Court and Mr Mahere replied that he could not proffer an explanation in that respect.  The court informed Mr Mahere that it was not inclined to postpone the matter and gave him an opportunity to familiarise himself with the record so that the matter would proceed on the matter.

Mr Mahere, on the merits, submitted that he abided by the documents filed of record.  He stated that the decision of the arbitrator was not supported by the evidence adduced at the hearing.  He further submitted that the evidence produced by the appellant showed appellant had been overcharged and that the amount which the arbitrator should have ordered appellant to pay was $1639.67.  It was further argued that the award was contrary to public policy and should be interfered with.  Mr Mahere further stated that the respondent had not adduced any evidence in this respect before the arbitrator.  it was further submitted that the arbitrator had taken into account the fact that appellant had delayed in remitting the union dues and thereby punishing the appellant.  It was stated that this was contrary to what was allowed as interest at the rate of 15% should have been levied.

Mr Chaka, for the respondent submitted that the appeal was misplaced.  He stated that the respondent had lodged a claim for the period extending from July 2014 to December 2014 which was in the amount of $7032.54.   He further stated that during the proceedings appellant raised the issue that payments had been made for employees who had left employment as far back as 2010.  He stated that the arbitrator had dismissed the argument on the basis that there was no proof that the employees had left employment as appellant had presented a table with no proof such as termination letters or death certificates.  Mr Chaka submitted that the arbitrator had dismissed the claims as the appellant had not communicated with the respondent.  It was further argued that the arbitrator had proceeded to deduct the amount that was allegedly overcharged.  Mr Chaka stated that the appellant’s submissions was not sincere as the appellant could not continue to deduct union dues from employees who had left employment as it had no obligation to pay such dues.  Mr Chaka stated that if the appellant had overpaid the union dues the remedy was to recover such dues from the respondent and not institute an appeal against the arbitral award.

A reading of the record shows the table submitted by the appellant begins from the year 2010.  The amounts allegedly charge paid amount to $4 816.69.  It should be noted that figures which pertain to the relevant period are those in paragraph 5 and 6 of the table.  The figures are $361.57 and $723.12 respectively. The table is shown on page 31 of the record.  The claim by the respondent is found on page 30 of the record.  It shows that respondent was claiming union dues for named persons for the period July 2014 to December 2014 which has a total figure of $7032.54.  An analysis of the two tables are irrelevant for the purposes of computation for the period of respondent’s claim.

Turning to appellant’s grounds of appeal, it is averred that the arbitrator accepted the fact that the appellant had been overcharged by an amount of $4 816.69.   A reading of record does not show that the arbitrator “accepted” that appellant had been overcharged by the figure of $4 816.69.  This is what the arbitrator had to say:

“The claimant disputed this and argued that respondent (appellant) was supposed to communicate to claimant when the employees left its employ.   It cannot deduct the dues which in, allegedly paid over the years in the current claim.

I agree with claimant in this regard and have to dismiss respondent’s assertion.”

And further

“The onus falls squarely on the shoulders of respondent to advise when a union’s member resigns or dies as timeously as possible.”

Thus there is nowhere in the findings of the arbitrator which showed that he “accepted” that the appellant had been overcharge.  In fact he lay the blame squarely on the appellant for not informing the respondent of the members of its members who had left appellant’s employment.  The order by the arbitrator clearly states that it is as “revised” and “includes” 15% interest.  This therefore puts paid the appellant’s second ground of appeal which alleged that the figure was punitive in nature.  The arbitral award clearly shows that 15% interest was levied on appellant.  This is what was prayed for in the second ground of appeal.

Does the arbitral award show any misdirection on that part of the arbitrator?  The claim before the arbitrator was for the period from July 2014 to December 2014.  This was in respect of named employees and the figures was some $7 032.54.  Appellant produced a table which showed deductions dating back to 2010.   Evidently those deductions referred to by the appellant were not for the period in question save for paragraphs 5 and 6.  The next enquiry should be if the union dues are to be “deducted” from the employee’s remuneration where was appellant getting the money to submit to respondent’s offices.  This means that the appellant was not “deducting” the union dues from the employees since there was no salary to deduct them from.  Was the arbitrator wrong in dismissing the submission of the appellant in this respect?  I think not.  The arbitral award, in my view does not show any evidence of misdirection or irrationality.  It is trite that an appellate court will only interfere with the decision of a lower court or tribunal, where there is evidence of a gross misdirection.  The record does not show the existence of such a situation in casu.  (See generally Barros & Another v Chimpondah 1999 (1) ZLR 58 (S).

In conclusion the court is of the considered view that the appeal is devoid of merit and should be dismissed.

The court makes the following order:

The appeal, being without merit, be and is hereby dismissed.

The arbitral award of Honourable Nhongo be and is hereby upheld.

That there be no order as to costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners