Gudza Butchery & Bottle Store v Jameson Kufa & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/258/2016
HARARE, 3 AUGUST 2015
CASE NO. LC/H/629/14
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/258/2016

HARARE, 3 AUGUST 2015				  CASE NO. LC/H/629/14

AND 22 APRIL 2016

In the matter between:-

GUDZA BUTCHERY & BOTTLE STORE			Appellant

And

JAMESON KUFA					 		1st Respondent

And

KATHESI SIBANDA						2nd Respondent

And

WILTON CHIKWAVA						3rd Respondent

And

ELIZABETH CHIKWAWA						4th Respondent

Before Honourable L. Kudya, Judge

For Appellant		Miss L. Shambamuto (Legal Practitioner)

For Respondent	R. Masomera (Unionist)

KUDYA, J:

This matter was set down as an appeal against the arbitrator’s decision where he refused to hear the appellant employer’s rescission of judgment application on account of the fact that it had instituted multiple proceedings and such was contrary to the spirit of the law.

The facts of the matter are that the respondent employees got an award in their favour against the appellant employer in a case where they were claiming unless payment of wages.  The arbitral award was given in the appellant’s default.  It was later quantified by the same arbitrator.  The appellant appealed against the award to the labour court despite it having been granted in default of its appearance at arbitration.  At the same time appellant approached the arbitrator seeking that the arbitrator set aside the award he had given in its default.  The employees raised a point at the outset and objected to the arbitrator’s dealing with the rescission as in their view that was tantamount to duplicating matters.

Arbitrator agreed with the employees and ruled that he could not entertain the rescission application in the wake of the extant appeal filed against the very award that the employer sought to be rescinded.  It is the arbitrator’s decision to refuse to hear that rescission application which is the subject matter of this judgment.

Appellant raised only 2 grounds in the instant appeal which are:

Arbitrator grossly erred and misdirected self to find that he could not hear the application for rescission of a default award on the basis that it amounted to a multiplicity of proceedings.

Arbitrator grossly erred and misdirected self in finding that he could not hear an application for rescission of a default award on the basis that there was a pending appeal in the Labour Court against the same award.

In response to the appeal the respondent maintained that:

Arbitrator did not misdirect herself by finding that she could not hear the matter as it amounted to multiple proceeding since appellant had applied to High Court for the same award to be set aside.

Arbitrator correctly found that relief sought in High Court was similar to what it was seeking from arbitrator so section 124 Act would apply.

Arbitral decision could not be faulted as it was founded on the provisions of the Act and the terms of reference to arbitration.

In the result respondent prayed that the appeal be dismissed with costs for lack of merit in its entirety.

At the hearing of the matter the parties engaged in protracted argument about documents showing that employer had been served to attend arbitral proceedings when the default award was made.  Even though the court allowed those documents it realized upon preparing this judgment that such documents were not of critical note in the conclusion of the issues at state.  This is so because they spoke to the merits of the rescission which aspect was never attended to as the matter was concluded merely on the technicality that the employer could not be heard on account of multiplicity of proceedings.  This court will therefore not endeavor to comment on any of the tendered documents as such an exercise would only be one in futility.

It is also worth noting that indeed the wrong award had been referred to in the index and the correct award copy was later tendered by the parties.  It is also important to note that the 2 appeal grounds raised speak to essentially the same thing and can thus be disposed of as a single ground.  The critical question is whether arbitrator was right as he did to find that employer had mounted multiple proceedings which took away his arbitral powers to deal with the rescission application.  As the oral submissions progressed it also became apparent that the employer had appealed the arbitral decision in the Labour Court and it is the very same arbitral award that it sought to have arbitrator set aside.

Provision of section 124 Act and Section 92 (c) of the Act do not deserve restatement.  The same applies to the cases which were quoted by the parties.  It is apparent that the legislature intended to curb the mischief that one party could not have the same proceeding subject to analysis by different tribunals at the same time as that would make a mockery of one’s order against the other.

Applying this mischief test to the facts at stake it is clear that the very matter which employer approached arbitrator with to decide on rescission is the very matter which it was appealing against.  That clearly falls foul of the provisions cited.  It is clear that the 2 processes could not take place on the same party and subject as whatever comes out of the orders in each case would serve no purpose but to simply cause conflict on the issues at stake.  The court thus has no cogent reason to fault the arbitrator’s decision to refuse to hear the rescission application with the appeal on same matter pending at same time.  The court is satisfied that indeed there was multiplicity of proceedings in that regard and arbitrator rightly refused the employer the right to be heard on rescission with the appeal still pending in the Labour Court.  The appeal should therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety be and is hereby dismissed.

Each party bears own costs

Matsikidze & Mucheche, appellant’s legal practitioners