Delta Beverages v Tigere Mbiva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MT/20/2016
MUTARE, 28 JANUARY 2016 &
CASE NO LC/MT/149/2014
4 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/MT/20/2016

MUTARE, 28 JANUARY 2016 &			           CASE NO LC/MT/149/2014

4 MARCH 2016

In the matter between:

DELTA BEVERAGES						APPELLANT

Versus

TIGERE MBIVA							RESPONDENT

Before Honourable L F Kudya J

For the Appellant   S Chamunorwa  (Legal Practitioner)

The Respondent in Person

KUDYA J:

This is an appeal at the instance of the appellant employer against the decision of the arbitrator where he ruled that the appellant casualised labour by employing the respondent for a stretch of nine years on renewable fixed term contracts.

Facts of the matter are that the respondent who was in the appellant’s employ on fixed term contracts for over a stretch of nine years had his services terminated on 14 July 2014.

Aggrieved by the termination he approached a labour officer and ended up at arbitration where the arbitrator ruled in his favour. The appellant was irked by the arbitral award and thus appealed to this court which appeal is the subject matter of this judgment.

The basic grounds of appeal put forward by the appellant are:

“1.	The arbitrator erred at law by not determining the issue of his jurisdiction.

2.	The arbitrator erred at law to hold that the respondent who was on a fixed term contract ought to have been on a contract without limit of time.

3.	The arbitrator’s finding that the respondent was being underpaid was irregular because there was no evidence of such. Such a reasoning was so outrageous as to defy logic that no reasonable tribunal faced with similar facts could hold as such.

4.	The arbitrator misdirected at law by placing the burden of proof of underpayment issue on the appellant.

5.	The arbitrator erred at law to find that the respondent was entitled to bonus, Christmas hamper and drinkage voucher without giving reasons or legal basis upon which such finding was made.”

In the result the appellant prayed that the appeal be allowed with costs.

In response to the appeal the respondent maintained that:

“1.	In limine, the appellant was coming to court with dirty hands as it had not complied with arbitral award pending appeal.

2.	The appeal is not based on points of law and it ought to be dismissed.

3.	The arbitrator had jurisdiction to deal with the matter because the appellant treated the respondent as a casual worker and his remedy law in getting protection of the law from arbitration.

4.	The arbitrator’s finding that the respondent was underpaid was reasonable. The respondent provided facts of his underpayment which could not be controverted by the appellant hence this ground falls short as is not point of law and has to be dismissed.

5.	The appellant casualised labour as he made the respondent sign contracts for nine years and it is settled law that where such engagement is done and there is work of a fixed nature, but the employer causes employees to sign contracts that shall be construed as casualization of labour.

6.	The appellant had the onus to prove that the respondent was not underpaid. It failed to do so hence the arbitrator was correct to find that the respondent was underpaid.

7.	The award is correct vis bonus and other benefits enjoyed by permanent employees. The arbitrator’s finding that the respondent was permanent employee meant that he was entitled to those benefits too.

8.	In the result the respondent prayed that the appeal be dismissed as it is factual and does not present points of law.”

Before dealing with the merits of the appeal it is worth noting that on the date of the appeal hearing the respondent maintained that he was persisting in his point in limine. When asked to address the court he harped on the failure or the appellant to satisfy an order of costs given by the Bulawayo Labour Court on 23 June 2015 where it was ordered to pay the wasted costs.

The costs issue was ultimately resolved by the appellant paying to respondent   US$98-00 which he claimed were his wasted costs. That put to rest the point which he had raised with the court when asked by the court whether he had any points to take at the outset. Apart from that point only he maintained that he had no more points even though in his response to the appeal he had raised the fact that the appellant had come to court with dirty hands by not complying with the arbitral award. Since he did not pursue this at the appeal hearing the court safely conclude that he had abandoned that point.

This made it unnecessary for the court to rule on it. The same applies to the point of law debate which the respondent also seemed to have abandoned thus making it unnecessary for the court to rule on that point. In the result the court only concentrated on the merits of the appeal as submitted by the parties in their oral addresses and heads of argument filed of record.

For the appellant’s part it raised two points at the outset which need to be disposed of before the other niceties of the matter are tackled. These are the points of jurisdiction and prescription. It need be noted that jurisdiction issues are usually pleaded as review issues but can also be entertained on appeal where raising of same is meant to demonstrate that the tribunal whose decision is under attack erred at law.

In the instant case the appellant’s misgiving is that it challenged the arbitrator’s jurisdiction and raised the question of prescription. The arbitrator however did not address those two points but went on straight to the merits of the matter. In that regard it is the appellant’s view that such a flaw was a fatal defect at law only curable by the setting aside of the award.

The law is clear that when a party raises a preliminary point that must be ruled on failure to do so would indeed nullify the proceedings. A reading of the arbitral record and other papers filed of record demonstrate clearly that these two issues were raised but they were not ruled on. The decision on the jurisdiction aspect is what would have guided whether or not the arbitrator could proceed with the matter.

Since that was not done the court is in agreement that it was a serious flaw to proceed with the matter without addressing those two components.

Having concluded that there was such a flaw the next question is what should be the remedy? It need be stated that the error made by the arbitrator does not necessarily mean that there was no clear cause of action on the merits. As has been repeatedly held procedural regularities have to be put right. See Nyahuma v Barclays Bank 2000 (2) ZLR 445 (S)

In the premises the court is satisfied that such is a matter befitting re-visitation on the jurisdiction and prescription component before the other merits can be dealt with. In the result the arbitral award is set aside and the matter is remitted to the arbitrator to rule on the question of jurisdiction and prescription which were presented before him and which he did not rule on.

IT IS ORDERED THAT:

The appeal being with merit it be and is hereby allowed. The matter is remitted to the same arbitrator to rule on the submissions on jurisdiction and prescription which were presented before him and which he did not rule on. The re-hearing has to be done within three months of receipt of this judgment.

Calderwood, Bryce Hendrie & Partners, appellant’s legal practitioners