Gift Mtisi v Paragon Communications

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/288/2014
HARARE,… 20… AND …
CASE NO. LC/H/21/12
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO.LC/H/288/2014

HARARE,… 20… AND …					CASE NO. LC/H/21/12

In the matter between

GIFT MTISI							APPELLANT

AND

PARAGON COMMUNICATIONS				RESPONDENT

For the Appellant:	In Person

For the Respondent:	Mr B.M. Machanzi – C. Mpame & Associates

CHIVIZHE J.

This is an appeal against an arbitral award handed down on the 9th February 2012.

The factual background is as follows;

The appellant was employed as a Technician by Siemens (Pvt) Ltd a company whose telecommunications business was purchased by Paragon Communications (Pvt) Ltd on the 1st February, 2007.  The appellant was consequently transferred to Paragon Communications on the same terms and conditions as under the previous contract.  The appellant referred a complaint to the Labour Office of an unfair labour practice arising out of the fact that, contrary to the express terms of his contract of employment, the respondent had failed, neglected and or refused to provide him with a motor vehicle for his use whilst on company’s business.  The respondent used appellant’s personal vehicle for the company’s business and then failed to provide fuel and maintenance as promised.  The respondent also failed to attend to the servicing of the vehicle resulting in the appellant withdrawing the use of his motor vehicle.

The matter was referred to compulsory arbitration.  In an award handed down on 17 November 2008 the Arbitrator concluded that the respondent had committed an unfair labour practice by failing to provide appellant with motor vehicle and reneging on its obligations to service the appellant’s motor vehicle.  The 1st arbitral award reads as follows;

“AWARD

In the premises I order as follows;

The employer shall, on its account, send the employee’s Mitsubishi L200 motor vehicle for major service by a reputable garage of the employee’s choice, and the employer shall, upon presentation of the invoice in that regard, settle same in full within five (5) days thereof.

In the alternative, the employer shall fully reimburse the employee for any payment made by the employee to a reputable garage for the major service of his Mitsubishi L200 motor vehicle.  Such reimbursement shall be made by the employer within five (5) days of the date of presentation of proof thereof by the employee.

The employer be and is hereby ordered to deliver to the employee within five (5) days of the date of this Award, fuel coupons or fuel totalling 1 600 (0ne thousand six hundred) litres.

The employer be and is hereby ordered to reimburse the employee, within five (5) days of the date of this Award, in respect of the two services performed on his motor vehicle during the period November 2006 and March 2007, to the tune of 200 (two hundred) litres in fuel or fuel coupons.

The costs of this Arbitration are to be borne in full by the employer.”

The parties, consequent to the first award appeared in the Magistrate Court for purposes of registration of award. The parties then purportedly entered into a Deed of Settlement. The Deed of Settlement which was signed by both parties in its terms provided that neither party would have any further claim against the other party.  Thereafter a dispute ensued between the parties as to whether or not the Deed of Settlement had resolved all the issues/claims between the parties.   The parties therefore appeared before the second Arbitrator.  The issues for arbitration were as follows;

To determine whether the scope of the Deed Settlement attached bars or not this current case.

Whether or not claimant’s suspension was lawful.

Whether or not claimant committed any acts of misconduct, if so what could be the best remedy.

Whether or not the respondent waived his right to institute disciplinary action.

The Arbitrator after considering the evidence and arguments presented before him concluded that the deed of settlement did not bar the matter that was now before him, that the suspension letter issued by respondent was unlawful.  The Arbitrator then handed down an award in the following terms;

“AWARD

It is ordered that G. Mtisi be paid a total of US$3 016 damages for wrongful dismissal in the following instalments;

29 February 2012	- $1 005

31 March 2012 	- $1 005

30 April 2012	- $1 005

In coming up with total figure, the Arbitrator used the Industry rates for a C2, Patterson grade Technician for the period starting February 2009 to 19 October 2010, (US$306) including transport and housing allowance plus 22.5 leave days for the same period on a basic salary of US$266.00.

Parties to negotiate and agree damages to be paid to the Claimant for the period starting November 2007 to January 2009.  Shall parties fail to agree on the quantum of damages, they are at liberty to approach the arbitrator for quantification of same.

Arbitration costs to be borne by both parties.

I so award.”

Aggrieved the appellant has appealed to the Labour Court.  In his notice of appeal he prayed that the award be set aside and matter be remitted back to the arbitrator for the following grounds;

The Honourable Arbitrator is not clear if the prescribed rate of interest currently at 30% was considered for the quantum of damages or judgment debt (See Annexure “A”) as per Prescribed Rate of Interest Act 8:10).

Appellant sought, as result, to be “paid damages accordingly”  in the event that  an award was found in his favour (see Annexure “B”).  That was to refer to or according to the terminated contract of employment which is at the centre of the dispute.  It is not clear how “salary and benefits”  which were the subject of suspension of Appellant (see Annexure “C”) before termination of contract were considered in the computation of damages using information that should have been provided by Respondent as agreed during arbitration proceedings before Honourable Zinyau.

In particular, it is clear how a salary of USD266.00 or USD306.00 with allowances in a period of 21 months (February 2009 to October 2010) gives a total of USD3016.00 as contractual damages excluding leave days.  The damages at this level would be USD586.00 or USD6 426.00.

In section 6.1 and 6.2 of the terminated contract are vested the Cimas Private Hospital Medical Aid scheme and company car benefits.  In fact the Appellant was not entitled to Transport allowance since there was a company car benefits.

Considering three people in Appellant’s Medical Aid scheme then, applying the rates in the period April 2009 (when Cimas started using USD) to October 2010 would gave a total of USD1 226.60.

Based on the ZIMRA vehicle deemed benefit for a 2.5l vehicle, which is the engine capacity of Appellant’s last company car issue in the life of the contract, in the period February 2009 to October 2010, that would give a total of USD3 880.00.  Alternatively the benefit could be based on the calculation in Appellant’s arbitration case 1239/07 and upheld in appeal case LC/H/18/2009 which would work out to

USD4 200.00 in the period in question.

After the finding by the Honourable Arbitrator of unmitigated violation of the Labour Act 28:01 by Respondent i.e. sending Appellant on an unlawful suspension, gross failure to follow relevant procedures and failure to even attempt to substantiate a single allegation of misconduct it is not clear how the Respondent was not found the best candidate for the severest of punitive damages as provided for in the Labour Act 28:01 section 89.

If the submissions above are tenable then the quantum of damages including interest comes to at least USD13 000.00 excluding consideration of punitive damages.  This Appeal seeks relief in clear consideration of issues raised and appropriate adjustments effected.

The respondent in response submits as follows;

It is the arbitrator’s discretion whether or not to award damages with interests, moreover the prescribed rate of interest is not currently as 30%.

It is clear from the arbitral award that damages were calculated using industry rates for C2 Patterson grade (electrician), however there should be error in calculating of the damages stated in paragraph 1 of the arbitral award.

There is no justification or basis on which the severance and punitive damages ought to have been awarded against respondent.

The appeal is premature considering that the arbitral award gave room for negotiation as to quantification of damages and appellant … to note an appeal in respect of unnegotiated damages giving no room for same.

It seems clear to me after considering submissions by parties that the respondent raises a valid point that the matter is prematurely before the Labour Court.  A perusal of the operative part of the arbitral award in paragraph 2 clearly shows that the award is not a final/definite award.  The parties were directed to negotiate and agree on damages to be paid to cover the period from November 2007 to January 2009.  In the event that parties failed to agree on the quantum of damages the parties were free to approach the Arbitrator for the Arbitrator to quantify the same.  No cogent explanation has been placed before this court as to why the appellant has approached the Labour Court directly without seeking to negotiate as directed by the Arbitrator. In any event through his papers it is clear that the appellant is seeking clarification on certain aspects of the arbitral award e.g. the aspect of prescribed rate of interest, the basis for the calculated damages.  The appellant in his relief is also praying for a remittance of the matter to the Arbitrator and setting aside of the award.  The court however cann0t order setting aside of the award where the court has not delivered into the merits.  The proper court  to follow would be for the appellant to seek clarification before the Arbitrator concerned. Clearly therefore the present appeal cannot stand.  The appeal is consequently stands dismissed with no order as to costs.