City of Harare v Wilson Kwashira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/717/13
HELD AT HARARE 9th DECEMBER, 2013
CASE NO LC/H/441/13
JUDGEMENT NO LC/H/717/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/717/13

HELD AT HARARE 9th DECEMBER, 2013	    CASE NO LC/H/441/13

AND 17th JANUARY 2014

In the matter between:-

CITY OF HARARE								Appellant

And

WILSON KWASHIRA							Respondent

Before The Honourable Justice L.M. Murasi,

(IN CHAMBERS)

MURASI, J.

This matter was brought before the Arbitrator to determine whether the Respondent was entitled to shift allowance.  At the end of the hearing, the Arbitrator gave the following award in paragraph 1:

“Respondent is hereby ordered to pay Claimant 10% of basic salary with interest at prevailing bank rates as shift allowance effective from 11 March, 2011 being the day claimant noted a grievance.  Shift Allowance should be paid at the corresponding monthly rates”

Appellant was dissatisfied with the award as worded by the Arbitrator.  Appellant filed a notice of appeal and later proposed a wording of paragraph 1 which Respondent agreed to resulting in the filing of a “Consent Order”.

It is the procedure adopted by both Appellant and Respondent that has caught my eye and hence the need to comment.  The appeal is made in terms of section 98(10) of the Labour Act [Chapter 28:01].  The filing of a “Consent Order” does not have the effect of setting aside the arbitral award.  The arbitral award should be set aside first either wholly or in part before a substitution can be made.

Having made the above observation, it is my view that the Arbitrator erred in pegging the interest rate at the “prevailing bank rate” instead of the prescribed rate of interest.

In the result, Paragraph 1 of the Arbitrator’s award is set aside and substituted with the following:

“That Appellant pays Respondent 10% of basic salary as shift allowance with effect from 11 March, 2011 with interest at the prescribed rate of interest”

The remainder of the arbitral award remains unchanged.

There is no order as to costs.

BY THE JUDGE