Comair Limited v Jane Murove & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/255/2014
HELD AT HARARE, 26 MARCH 2014 &
CASE
NO
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/255/2014

HELD AT HARARE, 26 MARCH 2014 &		   CASE NO LC/H/30/2014

9 MAY 2014

Before Honourable L M Murasi

In the matter between:

COMAIR LIMITED							APPLICANT

And

JANE MUROVE 							1ST RESPONDENT

And

KATHIWE VAN DER SANDEN					2ND RESPONDENT

And

MPILWENHLE NYATHI						3RD RESPONDENT

And

SAMUEL KUYAYA							4TH RESPONDENT

For Applicant	      	Mr G Chingoma (Legal Practitioner)

For Respondents        	Ms L Shambamuto (Legal Practitioner)

MURASI J:

The applicant has approached this Court for interim relief in terms of section 92 E (3) of the Labour Act [Cap 28:01].

The applicant employed the respondents in various capacities. It is alleged that the applicant was underpaying the respondents which resulted in the matter being referred to a labour officer for conciliation and finally to an arbitrator. The arbitrator found in favour of the respondents and the applicant has appealed against that decision. Pending the determination of the appeal the applicant has applied for a stay of the execution of the arbitrator’s award.

The applicant submits that the Court should grant the relief prayed for as a refusal will result in irreparable prejudice to the applicant. The applicant further submits that there are good prospects of success on appeal as the arbitrator’s award was fundamentally flawed. The applicant argues that the arbitrator grossly misdirected himself in making a finding that the Collective Bargaining Agreement (“CBA”) Statutory Instrument 55 of 1992 and its amendments applied between the applicant and the respondents. The applicant further submitted that the arbitrator erred on a question of law in holding that unregistered and unpublished amendments to the CBA were valid and binding. The applicant further argued that the arbitrator erred in law in finding that the applicant had unlawfully reduced the respondents’ salaries and that the respondents had a legitimate expectation to the payment of a bonus.

The respondents, on the other hand, submitted that the applicant will not suffer irreparable prejudice as it was a viable concern and in fact, it is the respondents who are likely to suffer irreparable prejudice. On the issue of prospects of success on appeal, the respondents argue that the applicant and the respondents belong to the Air Transport Industry and are thus governed by Statutory Instrument 55 of 1992 and subsequent amendments. The respondents further submit that the law allows for amendments to the CBA which should not necessarily be published in the government gazette.

It is trite that in applications of this nature the Court, of necessity, has to consider the following issues:

Prospects of success on appeal;

Prejudice to the other party;

Balance of convenience; and

Need to have finality in cases.

The applicant argues that the arbitrator’s interpretation of the law was erroneous. In making a determination on this matter, the Court should address its mind on whether an appellate court can arrive at a different finding from that of the court a quo. The current dispute involves an interpretation of the Labour Act vis a’ vis the CBA. The issue is whether the arbitrator was correct in stating that the applicant and the respondents were governed by the CBA and whether the amendments to the CBA did not need to be gazetted. This Court is of the view that this is a matter which should be allowed to be placed before an appellate court for the issues to be properly ventilated and a decision made. It is my view that the applicant has an arguable case.

The Court will now turn to the issue of prejudice. The respondents submitted that they were being underpaid and not that they were not being paid at all. There is a dispute as to what they were entitled to. The matter is different from a situation where no payment was made at all. The parties have already filed their papers and the appeal awaits a set down date. This Court is of the view that no prejudice would be occasioned to either party were they should wait for the matter to be heard. This also applies to the issue of the balance of convenience.

In the result, the Court finds that there is merit in the application and it accordingly succeeds.

The Court therefore makes the following order:

The execution of the arbitral award by Hon A J Manase is accordingly stayed pending the finalisation of the appeal in Case Number LC/H/30/14.

That there be no order as to costs.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners