Green Motor Services (Private) Limited v Cheneso Muvandi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/41/13
MUTARE 23RD SEPTEMBER 2013
CASE NO
JUDGMENT NO LC/MC/41/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/MC/41/13

MUTARE 23RD SEPTEMBER 2013		    CASE NO LC/MC/01/13

AND 22ND  NOVEMBER 2013

GREEN MOTOR SERVICES				Appellant

(PRIVATE) LIMITED

CHENESO MUVANDI					Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr T Chiurayi, Attorney

For Respondent		Mr H Tanaya, Attorney

MUSARIRI, G:

On 19th November 2012 the Honourable T.R. Viriri made an arbitration award.  In terms thereof, he ordered Appellant to either reinstate Respondent’s employment or pay her damages in lieu of reinstatement.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

The grounds of appeal were four-folds and read as follows;

The arbitrator erred at law in failing and/or refusing to determine the issues referred to him in accordance with the Terms of Reference agreed by the parties;

The arbitrator erred at law in finding that a Mr Maburutse had made findings on the merits of the matter, when Mr Maburutse had only found that Respondent’s suspension was unlawful, and had not made any findings on the merits of the charges preferred against Respondent;

The arbitrator erred at law in finding that Appellant’s failure to appeal Mr Maburutse’s award barred Appellant from charging Respondent subsequently; and

The arbitrator erred at law in failing to give reasons for declaring Respondent’s dismissal a nullity.

During oral argument in this Court, Appellant abandoned the 1st and 4th grounds of appeal.  The remaining 2nd and 3rd grounds are intertwined.  They focus on the findings and effect of the earlier arbitration award made by the Honourable L Maburutse dated 31st August 2010.  The critical part of Maburutse’s award read thus,

“Also the fact that the Applicant suspended the Respondent on given charges, but instead of following the procedure in terms of the Statutory Instrument he invoked in coming up with the decision to suspend the Respondent he elected to press further charges against her and to make fresh allegations against her shows he is not sure of the charges to prefer against Respondent and the allegations to make against her.  This coupled with the Applicant’s failure to comply with the legal instrument and to attend the arbitration hearing suffice to cause a finding that the Applicant is acting mala fide, has a malicious intention to keep Respondent on suspension in perpetuity and that the allegations he is making against the Respondent and the charges  he is pressing against her are without material substance.  It is my considered view under the circumstances that the appropriate course to take it to have the suspension imposed on the Respondent lifted and the Applicant’s charges dropped.”

The underlined portions and the preceding reasoning show that Maburutse not only dealt with Respondent’s suspension.  He proceeded to deal with the charges against her.  He found that the charges were without material substance.  Whether he was right or wrong concerning the charges could only be tested by an appeal.  The award was not appealed. That leaves its finding firmly in place.  Accordingly  the parties are bound by the findings.  It follows therefore that Appellant could not revive the same case against Respondent.  As such the Honourable Viriri was correct in effectively finding that the matter was res judicata.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E