Franco Motors v T. Mhlanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/712/2013
HARARE, 6 & 20 DECEMBER 2013
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/712/2013

HARARE, 6 & 20 DECEMBER 2013	    	       	    CASE NO. LC/H/755/2013

In the matter between:-

FRANCO MOTORS							Applicant

And

T. MHLANGA							Respondent

Before The Honourable F.C. Maxwell, Judge

(IN CHAMBERS)

MAXWELL J.;

This is an application in terms of Section 92 E (3) of the Labour Act [Chapter 28:01] for interim relief pending the hearing of an appeal against an arbitral award in favour of Respondent.  The award was handed down on 16 September 2013 wherein Applicant was ordered to pay Respondent $6 279 within 30 days from the date of the award.

On 25 September 2013 Applicant noted an appeal against the determination by the Arbitrator in respect of quantification of damages.  The appeal is yet to be heard.  Applicant fears that Respondent may seek to enforce the arbitral award.  Respondent responded to the application seeking the dismissal of the application.  Respondent submits

Applicant has not made any attempt to comply with the award.

Applicant admits that its appeal is of no force and as such should comply first.

Respondent also raises issues that are subject of the appeal.

The factors to be taken into account in considering the grant of interim relief were set out in the case of Zimbabwe Open University v Gideon Magaramombe and Another SC 20/12 Chief Justice Chidyausiku outlined these as;

“(1) whether or not the party seeking the relief has a prima facie right …… to stay the execution ….. pending the determination of the appeal;

(2) whether or not the applicant …. will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds; and

(3) The balance of convenience.”

Applicant is empowered by Section 92 E (3) of the Labour Act [Chapter 28:01] to approach this Court for interim relief.  The said section provides that;

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires”.

Respondent is mistaken in his submission that Applicant should first comply with the award.  The successful application for suspension of the execution of an award safeguards the interests of both parties.  It guards against the use of money which an employee might not be able to reimburse should an employer succeed on appeal.  At the same time if the appeal fails, the employee can always proceed to execute on the award.

Applicant has raised issues that may result in an appellate Court coming to a conclusion different from that of the Arbitrator.  For instance Applicant alleges that the Arbitrator based his calculations on basic pay on an unsubstantiated amount.  Applicant submits that irreparable harm and or prejudice could result if Respondent executes on the award.  The balance of convenience favours the granting of interim relief.

Accordingly it is ordered that

The execution of the arbitral award handed down on 16 September 2013 by Honourable C. Moyo be and is hereby stayed pending the hearing of the appeal filed on 25 September 2013 under reference LC/H/755/13