Freda Rebecca Mine v A Magarasadza & 17 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/477/2013
HARARE 27 JUNE & 25 OCTOBER 2013
CASE NO LC/H/250/2012
In the Matter between
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/477/2013

HARARE 27 JUNE & 25 OCTOBER 2013		CASE NO LC/H/250/2012

In the Matter between

FREDA REBECCA MINE					APPELLANT

Versus

A MAGARASADZA & 17 ORS				RESPONDENTS

Before The Honourable L. Hove:	Judge

For the Appellant  :	C Kwirira (Legal Practitioner)

For the Respondent :	A K Maguchu (Legal Practitioner)

HOVE J:

This is an appeal against an arbitral award handed down by the Honourable L M Gabilo on 2 March 2012

The arbitrator found that an unfair labour practice had been committed when the employer discriminated against the claimants. He made the following order:

“1)	The claimants are hereby reinstated to their position and the dismissal is thus hereby set aside.

2)	The Respondent is ordered to pay the claimants all arrears and allowances cited above within thirty days from the date of the order.

3)	The Respondent to pay interest at the prescribed rate.

4)	The Respondent to pay the costs of arbitration fees incurred by the claimants.”

The employer was aggrieved and noted an appeal against the award to this court.

The grounds of appeal are long and these in brief are that:

The arbitrator erred in finding that the appellant had approached it with dirty hands, an issue that neither of the parties had raised before him.

The arbitrator misdirected himself in failing to find that the claim before him was an aspect of another case.

The proceedings violated the provisions of s 124 (1) of the Labour Act [Cap 28:01] in that allowing the proceedings resulted in multiple proceedings against the employer.

The arbitrator misdirected himself in directing the employer to comply with arbitrator Kare’s award. He had no jurisdiction to make that order.

The arbitrator misdirected himself by making a finding that there had been undue influence/coercion on Mr C Nyamhunga and J Chikadza when they signed the new contracts.

The arbitrator misdirected himself in ordering the payment of benefits claimed by the eighteen respondents when there was no contract of employment before their dismissal.

The arbitrator misdirected himself in ordering re-instatement when the circumstances where such that he ought not to have done so.

The arbitrator erred and misdirected himself in awarding costs against the appellant.

When the matter was referred to the arbitrator, the issue which had given rise to the dispute was that the respondents (whom I shall refer to as workers) had taken a view that they were entitled to certain other benefits which the appellant (“the employer”) was, in their opinion, denying them unfairly.

A claim for the said benefits was filed with a labour officer on 8 July 2011. The employer disputed this claim. The matter was not amicably resolved and was consequently referred for arbitration.

The Honourable Gabilo was thus seized with the matter which related to the claim for benefits and allowances.

After hearing both sides, the arbitrator found that the appellant was committing an unfair labour practice and unlawful discrimination by failing to pay the benefits and allowances which other workers were being paid.

On the merits, the workers were thus successful before the arbitrator and he ordered that they be paid the allowances with interest at the prescribed rate. He further awarded costs against the employer.

The present appeal, as stated, is against that decision by the honourable arbitrator. Eight grounds of appeal have been raised and I will proceed to address the issues raised seriatim.

Whether or not the arbitrator misdirected himself in making a finding that the employer was approaching him with dirty hands?

It has not been disputed that the “dirty hands” issue was not one that either of the parties had placed or argued before the arbitrator. The arbitrator therefore did misdirect himself by making a finding on this issue which was not before him.

Although this finding was made in the body of the award, it was not included as part of the final award. It was recorded under the section of the award titled “Findings and analysis” below this heading is another section titled “Arbitral award”. No mention or further reference is made to the dirty hands issue. The arbitrator premised his order on the fact and finding that the employer had committed an unfair labour practice and the employer had unlawfully discriminated. No prejudice was thus suffered by the employer by the arbitrator’s finding on the “dirty hands” issue.

The fact however remains that the arbitrator misdirected himself in making that finding and all reference to the dirty hands is accordingly struck off from the award.

2)	Whether or not the arbitrator misdirected himself by failing to make a finding that the issue before him was an aspect of another case?

This is a finding that would be purely factual and not appealable to this court. But even if one were to consider it, the claim was for outstanding benefits which the workers claimed were not being paid as a punishment to them for refusing to down grade their contracts of employment from being ones without limit of time to the proposed fixed term contracts. The earlier arbitral award by honourable arbitrator Kare was protecting the workers from being forced to sign the new contracts unless the employer had negotiated and they had accepted.

The denial of the benefits could be related to the fact that these workers had refused to sign the new fixed term contract, an issue that had been placed before Honourable Kare. But in the proceedings before Honourable Kare, no claim had been made for the denied benefits. This claim was premised on the fact that the employer had unlawfully denied certain specified benefits. The two claims are therefore not the same.

The Kare issue arose out of the dismissal. The present issue arose out of alleged unlawful acts by the employer prior to the dismissal.

There is thus no merit in this ground of appeal.

3)	Whether or not the arbitrator misdirected himself in failing to find that there were multiple proceedings in contravention of s 124 (1) of the Labour Act [Cap 28:01].

Section 124 (1) does not bar a multiplicity of proceedings. What the section does is to require that if there are related matters, the authority, court or tribunal which is responsible for or concerned with the second mentioned proceedings must be advised of the earlier proceedings. There is no allegation in casu that the arbitrator was not advised of the earlier proceedings. This third ground of appeal is thus without merit.

4)	Whether the arbitrator misdirected himself in directing the employer to comply with the award by Honourable Kare?

I have gone over the award that is being appealed against and I do not see where the arbitrator directed the employer to comply with the arbitral award by Honourable Kare. In analysing the facts and evidence before him, the arbitrator confirmed certain several facts which included that he was of the view that previous orders had not been complied with and that orders had to be complied with first before a litigant could approach the court seeking redress. He did not order that arbitrator Kare’s award be complied with. He merely observed that Kare’s award which ordered that the contracts be negotiated had not been complied with and was of the view that the employer had dirty hands. He did not direct that Kare’s award be complied with. Therefore, this ground of appeal also lacks merit.

5)	Whether the arbitrator misdirected himself when he found that there had been duress or undue influence in respect of two employees

This is an appeal court which did not have the benefit of seeing and assessing the evidence given by the witnesses. It also could not assess the demeanour of the witnesses. As such it cannot easily interfere with factual findings made by the arbitrator that he was of the view that duress and undue influence had been brought to bear on certain persons. Also as earlier indicated, the court has no authority to deal with appeals based on factual grounds.

See s 98 (10) of the Labour Act [Cap 28:01].

This ground of appeal also lacks merit.

6)	Whether the arbitrator misdirected himself in finding that benefits be paid as claimed?

Again these were factual findings by the honourable arbitrator which cannot be disturbed unless it can be said that the findings were so grossly unreasonable that no reasonable person applying his mind thereto could have arrived at such a conclusion.

See Chinyange v Jaggers Wholesalers SC-24-03.

I am not persuaded that that is the case in casu. The record has evidence to show that it was a reasonable conclusion of facts. I find this ground also lacks merit and cannot succeed.

7)	Whether the arbitrator misdirected himself in ordering re-instatement when this was not an issue before him

This ground of appeal has merit. The respondent has conceded that much. Clearly the issue was whether or not certain benefits or allowances could be paid. The workers were not seeking re-instatement. The arbitrator did misdirect himself in this regard.

8)	Whether the arbitrator misdirected himself when he awarded costs against the employer

I have read the employer’s heads of arguments and nothing in them is argued to support this ground. There is therefore nothing placed before the court to seek to persuade it to hold that the arbitrator erred in this regard.

A lot of arguments have been advanced in relation to how President Chidziva erred and how her decision was a legal nullity. A lot has again been said about honourable Kare’s award and mention made of President Makamure’s dealings with the varied matters. This is not necessary. The appeal in casu relates to honourable Gabilo’s award and whether or not he erred in giving the order that he gave.

My role in these proceedings does not involve a review of all the other earlier proceedings.

The arbitrator was seized with an application for the payment of certain benefits he misdirected himself in ordering re-instatement and making pronouncements on issue of dirty hands when those issues had not been argued before him or placed before him.

He, however, also ordered that the benefits and allowances be paid and that interest at the prescribed rate be paid and awarded costs against the employer. In this, he did not misdirect himself.

In the circumstances, I make the following order:

That paragraph 1 of the order by the arbitrator setting aside dismissals and reinstating the claimants is hereby set aside.

That all findings on the “dirty hands” issue are hereby struck off.

That paragraphs 2, 3 and 4 of the honourable arbitrator’s order be and are hereby confirmed.

That save for setting aside of paragraph 1 of the honourable arbitrator’s order and stricking out all references to the “dirty hands” issue, the appeal is dismissed with costs.

HOVE J

LABOUR COURT – HARARE

Magwaliba & Kwirira, appellant’s legal practitioners

Dube Manikai & Hwacha, respondents’ legal practitioners