Cold Storage Company Limited v Bernard Chitayi & 133 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/610/2013
HARARE, 9 JULY 2013 &
22 NOVEMBER 2013
CASE NO LC/H/842/2012 REV
JUDGMENT NO LC/H/610/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/610/2013

HARARE, 9 JULY 2013 & 				   CASE NO LC/H/842/2012 REV

22 NOVEMBER 2013

In the matter between:-

COLD STORAGE COMPANY LIMITED		APPLICANT

Versus

BERNARD CHITAYI & 133 OTHERS			RESPONDENTS

Before The Honourable L Kudya :	Judge

For the Applicant			T Moyo (Branch Manager)

For the Respondents			E Maponga (Trade Unionist)

KUDYA J:

This is an application for the review of an arbitral award which was made on 21 September 2012 in favour of the Respondents (“employees”) against the Applicant (“employer”). Within this review case arose the issue of condonation of the late filing of the heads of argument by the Applicant and also the attendant request to have the bar in that respect lifted. This judgment, therefore, address the two components referred to above.

Facts of the case are that the employer and the employees found themselves before the arbitrator in a case where the employer had undertaken to liquidate the employees’ salaries arrears at the rate of $100 000-00 per month but had failed to honour that agreement. At arbitration the arbitrator concluded that the employer had to honour its commitment of $100 000-00 as it had earlier promised. He thus endorsed the fact that the employer should pay the money on the earlier agreed terms.

Aggrieved by the award, the employer applied to this Court on 22 October 2012 to have the arbitral award set aside. The basis for the review was that:

“The arbitration award is grossly unreasonable in that after finding that the Appellant is ‘struggling financially’ it proceeds to direct the Appellant to pay the first respondent US$100 000-00 per month towards arrear salaries of US$445 518-00. The first respondent is only one out of three branches and such a monthly obligation will cause the collapse of the Applicant.”

In response the Respondents maintained that the arbitral award was in order given the fact that, the arbitrator merely confirmed the earlier undertaking which had been made by the application/Applicant. The Respondents thus moved the Court to dismiss the review application as in their view it had no merit at all.

The review was originally set down for hearing on 13 June 2013. On that date counsel for the Applicant indicated that his client had failed to put in its heads of argument because by the set down date the applicant had not yet had the benefit of getting the full record from the Registrar. To that end counsel had had difficulty in preparing the heads of argument. He consequently requested that the matter be postponed to a later date to allow him to put in his formal application for condonation of the late filing of the heads and upliftment of the bar operating against his client.

The postponement was allowed as prayed for and the matter was postponed for the hearing of the condonation application and the main merits of the review case. On 9 July 2013 the matter came up but this time the Applicant was no longer legally represented. There was no formal renunciation of agency by its counsels but it was indicated that at that stage the branch manager and the human resources regional officer were now representing the applicant/employer.

The Respondents maintained their Union representation. At this hearing, the Applicant tendered its formal application for condonation and also tendered a copy of the case of Champion Constructors v Modrack Mkandla & Patience Chipo Mkandla SC-18-2007. The champion case was basically to the effect that the absence of a full record for purpose of compiling heads of argument can be held to be a good ground to allow the defaulting party to put its house in order before the matter can be heard on the merits.

On the other hand, the Respondents were adamant that, since the Applicant was the driver of its own case, it was not imperative on the Registrar to let it have a full record to enable it to prepare its heads of argument. They thus moved the Court to dismiss the condonation application and to uphold the bar thus effectively rendering the review dismissible in default of the Appellant’s filing of its heads on time. After hearing both parties the Court allowed the application for condonation and upliftment of bar. It however, indicated that, the full reasons will follow in the main judgment. These are they:

The test to be satisfied in such applications is set out in the case of T Mazvimbakupa  vs City of Harare HC-H 92 -05. Applying the test in the above case to the facts of the instant case, it is clear that the Applicant had a genuine excuse that until it get the full record from the Registrar, it was difficult for it to file the heads. The delay was only to the extent of the time when the record was regular.

The balance of convenience also favoured that the heads be put in so that the matter could be concluded on the merits and not technically, in which case the same case would be dealt with time without end at the Labour court on technical niceties thus frustrating the ends of justice.

In any event, as at the date when the merits of the matter were heard, the Applicant was a self actor which under normal circumstances would not be obliged to file heads. It is for these brief reasons that the Court was of the view that the condonation application had merit and allowed it and at the same time caused the bar operating against the Applicant to be uplifted.

Turning to the merits of the review case, the law is settled as to how this Court exercises its review powers. See section 89 (d) (1) Labour Act and section 26 and 27 High Court Act.  In the instant case the applicant’s argument is that the arbitrator should have noted the fact that it is struggling financially and refused to endorse its earlier undertaking of US$100 000-00 plan. A reading of the arbitral award demonstrates clearly that he appreciated the financial woes of the Applicant but being that as it was, nothing else was placed before him to warrant the non-endorsement of the earlier undertaking.

The Applicant argues that, it has three branches and one branch could not gobble such a sum given its financial straits. What the Court fails to appreciate is how the Applicant well knows its own circumstances could have made such an undertaking. It is clear from the arbitral award that all that he confirmed was the offer that had earlier been made by the Applicant to the Respondents.

The Court does not see how any misdirection or bias etc. can be levelled against such an award. It is clear that the Applicant has not made out a good case for the review of the arbitral award. The application should accordingly fail.

IT IS ORDERED THAT:

The application for condonation of late filing of heads of argument by the Applicant and upliftment of bar being with merit, it be and is hereby allowed. The Applicant is allowed to file   its heads out of the times prescribed by the rules.

The application for the review of the arbitral award being without merit, it be and is hereby dismissed with costs.

The arbitral award of 21 September 2012 is to stand.

L KUDYA

JUDGE – LABOUR COURT

U.F.A.W.U.Z - Respondents’ Representatives