City of Harare v Onias Rusike & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/454/2016
HARARE, 26 MAY 2016 &
CASE NO LC/H/1104/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/454/2016

HARARE, 26 MAY 2016 &					      CASE NO LC/H/1104/2015

22 JULY 2016

In the matter between

CITY OF HARARE							           APPELLANT

Versus

ONIAS RUSIKE							   1ST RESPONDENT

And

ARTWELL MASAKA						   2ND RESPONDENT

Before the Honourable F C Maxwell J

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For the Appellant	O Shava (Legal Practitioner)

For the Respondents   S Banda (Legal Practitioner)

MAXWELL J:

This is an appeal against an arbitral award in favour of the respondents. The respondents are former employees of the appellant. They were suspended with pay and benefits for thirty days pending disciplinary hearings. They were further suspended for another thirty days during which they were called for a hearing. The respondents walked out of the hearing after alleging that the matter had been referred to a designated agent in terms of S I 171 of 2010. The hearing proceeded in their absence and they were convicted and dismissed from employment.

Aggrieved the respondents referred the matter to conciliation. A certificate of no settlement was issued and the matter was referred to arbitration. The arbitrator ruled in favour of the respondents and the appellant appealed to this court. On 7 August 2015 this court remitted the matter to a designated agent for a hearing de novo. The appellant filed an application for leave to appeal against the judgment of this court.

After the remittal the parties went for conciliation and subsequently arbitration. The appellant objected to the proceedings on the basis that the claim had been made prematurely as an application for leave is pending. The appellant submitted before the arbitrator that it is illogical to comply with a decision which is under challenge so it is entitled to be heard first before suffering the consequences of a judgment that it believes was made in error. The respondents insisted on their claim for arrear salaries and benefits and provided quantification of same.

The arbitrator found that the appellant committed an unfair labour practice by failing to pay the respondents their salaries and benefits. He further ordered the payment of the amounts quantified by the respondents. The appellant was aggrieved and noted an appeal to this court on the ground that:

“The learned arbitrator grossly misdirected himself by coming to the conclusion that there was an unfair labour practice of the non-payment of salaries and benefits. It (sic) so erred in failing to arrive at the conclusion that the appellant could not approbate and reprobates i.e. comply with an order that it was challenging.”

The appellant prayed for the setting aside of the award with costs. The respondents responded stating that:

“1.	The learned arbitrator’s findings are unimpeachable for the following reasons:

The non-payment of remuneration is an unfair labour practice within the contemplation of section 8 as read with section 6 of the Labour Act [Chapter 28:01].

The learned arbitrator correctly found that an application for leave to appeal does not have the effect of suspending the judgment sought to be appealed.

It is common cause that the appellant did not apply for suspension of the judgment pending determination of the application for leave to appeal.

There being no order suspending the judgment, the arbitrator correctly found that there was nothing precluding compliance with same.

In any event, the appellant has only itself to blame for being sluggard in the enforcement of its rights.

2	The present appeal is therefore frivolous and vexations, and is intended merely to delay the inevitable.”

The respondents prayed for the dismissal of the appeal with costs.

The sole issue for determination seems to be whether or not the arbitrator was correct to proceed with the matter after being notified that an application for leave to appeal against the judgment of this court was pending. It was argued for the appellant that the decision of this court was suspended by the filing of an application for leave to appeal to the Supreme Court. No legal basis was provided for that argument except reference to the common law position that the noting of an appeal against a judgment suspends it. It was argued that the appellant could not comply with a judgment that it is in the process of appealing against. It was argued for the respondents that the noting of the appeal does not suspend the operation of the judgment.

I am persuaded by the respondent’s counsel. Nothing precluded the appellant from seeking an interdict in the relevant court to stop the proceedings before the arbitrator. The fact that one does not agree with a judgment is not a licence for disregarding it. There are legal measures one must take to prevent the undesirable. One cannot get away with arguing as the appellant did that because of a pending appeal there is no reason to comply without ensuring that position is fortified by an order of court excusing compliance.

Counsel for the respondent made reference to the cases of Tawanda Hwariva v Yambukai Holdings (Pvt) Ltd & Ors HH 314-15 and John Makarudze & Anor v Cosmos Bungu & Ors HH 8-15 in which it is stated that the common law rule that an appeal automatically suspends the decision appealed against does not apply to decisions of this court. The appellant has not provided any authority to the contrary. I therefore find that there was no basis for criticising the arbitrator for failing to arrive at a conclusion that the appellant could not approbate and reprobate by complying with an order that it was challenging. The appellant should have taken steps to ensure that it would not be in a position of approbating and reprobating.

The appellant criticises the arbitrator for coming to the conclusion that there was an unfair labour practice of the non-payment of salaries and benefits. This is surprising when one has regard to what the arbitrator stated in the background information. The background information concludes with the following statement:

“The two parties agree that the claimants have not been paid for thirty-one months hence referral for compulsory arbitration as stated under my terms of reference above.”

As stated in the respondent’s heads of argument non-payment of salaries and benefits amounts to unfair labour practice if regard is had to section 6 and 8 of the Labour Act [Chapter 28:01]. After agreeing before the arbitrator that the respondents were not paid for thirty-one months, the appellant has not explained how the arbitrator was wrong to conclude that an unfair labour practice was committed. There is nothing an record to suggest that the arbitrator’s position was unreasonable. The only reason given for the disagreement is that there was an intended appeal. I find no merit in the appellant’s position in this case. The appeal cannot succeed and the following order is appropriate;

The appeal be and is hereby dismissed with costs for lack of merit.

Mbidzo, uchadehama & Makoni, appellant’s legal practitioners

V Mambara & Partners, respondents’ legal practitioners