Choi Hung Wong (Wah Seng Auto Parts) v Crispen Rwazemba & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/664/16
HELD AT HARARE 3 MARCH 2016
CASE NO
JUDGMENT NO LC/H/664/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/664/16

HELD AT HARARE 3 MARCH 2016				CASE NO LC/H/1050/15

& 21 OCTOBER 2016

In the matter between:

CHOI HUNG WONG (WAH SENG AUTO PARTS)		Appellant

And

CRISPEN RWAZEMBA & ANOTHER				Respondents

Before The Honourable E Makamure, Judge

For Appellant			Mr S Marozva (Human Resources Officer)

For Respondent		Mr S Bingura (Trade Unionist)

MAKAMURE J:

This is an appeal against a decision of an arbitrator.  The issues for determination by the Arbitrator were:

Whether there was unfair dismissal

Whether there was non-payment of allowance (s) overtime and terminal benefits

The remedy of thereof

After considering the evidence presented, the Learned Arbitrator found that there

was no unfair dismissal but that there was non payment of allowances. The Learned Arbitrator then proceeded to make the following order:

“i	The termination of fixed term contracts for the claimants was lawful

Claimants were not paid their subsistence allowances and respondent should settle these.  Parties should deliberate and payment be processed within seven working days failure of which either party can approach this tribunal for quantification of the subsistence allowances.

The claims of cash in lieu of leave, overtime and payment of terminal benefits are dismissed as fully explained above.

The unlawful deductions should be remitted back to the claimants within seven days of receiving this award.”

The appellant was aggrieved by the award and appeals on the grounds that the

Learned Arbitrator erred in awarding the subsistence allowances; that the question of illegal deductions was not before the Arbitrator and should not have been considered and that ordering of compliance within seven days is unreasonable.

The  Labour Act [Chapter 28:01] (the Act) requires that only questions of law be raised on appeal to this court from a decision of an arbitrator.  This is provided for in section 98 (10) of the Act.  The first ground raises issues to do with the Learned Arbitrator factual findings.  Authority on what a question of what a question is of law has been established by the Supreme Court (See Sable Chemical Industries limited v David Peta Easterbrook SC 18/10).The first ground is therefore contrary to both precedent and provisions of the Act. It is also an established principle of our law that an appeal court should not interfere with a decision of a lower tribunal unless if it has been shown that the tribunal did not exercise its discretion properly (See Passmore Malimanji v CABS SC 47/07). In other words should I find that the Learned Arbitrator exercised his/her discretion properly, the decision should not interfered with.

One of the issues for consideration was non-payment of allowances.  The Arbitrator made factual findings that the allowances were due and owing.  Thus there is not in my view anything wrong with the arbitration award in that regard.  During the course of the proceedings before the Learned Arbitrator   findings were made regarding missing fuel and deductions to cover the loss incurred due to the missing fuel.  While the record shows that the issue came up for discussion during the course of the proceedings, it was not one of the issues for the Learned Arbitrator’s consideration.  For that reason the Arbitrator was not supposed to rule on it.  He fell into error by making a finding on an issue that was not before him.

In C Kambuzuma & 22 Others v The Athol Evans Hospital Home Complex SC 118/04 the Supreme Court held that a tribunal could not be faulted for not dealing with an issue which was not before it for consideration.  Equally in the present case the Learned Arbitrator was not asked to consider the question of the allegedly missing fuel and the propriety of how the employer had dealt with it.  I therefore agree that the Learned Arbitrator misdirected himself when he proceeded to consider an issue which was outside his terms of reference.

Grounds 2 and 3 deal with the issue of some deductions which were made from the respondent’s salaries.  This, as shown above, was outside the Learned Arbitrator terms of reference.

Having found merit in the last two grounds which deal with a single issue, the appeal partially succeeds.

The arbitral award should therefore be altered by the deletion of its paragraph (iv).

In the result paragraph (i) (ii) and (iii) of the arbitral award should be confirmed and,

paragraph (iv) of the award be deleted.

Accordingly it is ordered that the arbitral award be and is hereby amended by the deletion of paragraph (iv) of its order. The amended order reads:

‘’There was no unfair dismissal and termination of fixed term contract for the claimants was lawful.

Respondent be and is hereby ordered to pay the claimants their subsistence allowances. Parties may agree on the amount payable and make payment within 30 days of receipt of this order.  Should parties fail to agree, either party can approach the same Arbitrator for quantification of the said allowances.

The claims for cash in lieu of leave, overtime and payment of terminal benefits be and are hereby dismissed’’.