Hatifari Munongi v Happy Primary School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/634/16
HELD AT HARARE 10 MAY 2016
CASE NO
JUDGMENT NO LC/H/634/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/634/16

HELD AT HARARE 10 MAY 2016				CASE NO LC/H/90/15

& 21 OCTOBER 2016

In the matter between:

HATIFARI MUNONGI					Appellant

And

HAPPY PRIMARY SCHOOL				Respondent

Before The Honourable Manyangadze, J

For Appellant			J Majatame (Legal Practitioner)

For Respondent		Ms T Mapota (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award handed down on 30 October 2014, in terms of which it was ruled that the respondent’s (then claimant) representative had no locus standi to represent the respondent before the arbitrator.

The brief background to the matter is that the respondent was employed by the appellant as a teacher, from February 2010 to December 2010.  The termination of the respondent’s employment gave rise to a dispute whether it was an unfair dismissal or resignation.  After conciliation failed, the dispute was referred to compulsory arbitration.

The arbitrator upheld the appellant’s (then respondent) point in limine, which was to the effect that the respondent’s representative had no locus standi to appear before the arbitrator.  The arbitrator disposed of the matter on that basis without delving into the merits thereof.

Aggrieved by this determination, the appellant filed an appeal with this court.

At the hearing of the appeal, the sole issue the parties presented to the court for its determination was whether or not the respondent’s representative at arbitration had the requisite locus standi.  The appellant was represented by Mr Berry Guvamombe, an independent labour consultant from Link Consultancy.

The arbitrator ruled that the labour consultant could not represent the appellant.  Her basis for so ruling was section 92 of the Labour Act [Chapter 28:01] (the Act).  Section 92 of the Act provides for representation of parties in Labour Court proceedings.  It reads as follows:

“A party to a matter before the Labour Court may appear in person or be represented and appear by-

a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:01]; or

an official or employee of a registered trade union or employers organisation of which the party is a member.”

The arbitrator made further reference to section 98 (9) of the Act, which provides

that;

“In hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court.”

The respondent contended that the arbitrator correctly upheld its preliminary point, based on the cited provisions of the Act.

The appellant, on the other hand, contended that the arbitrator misdirected herself in applying the aforesaid provisions to the issue of representation at arbitration.  Section 92 of the Act provides for representation of parties before the Labour Court, not before an arbitral tribunal.

The appellant referred the court to Article 24 (4) of the Arbitration Act [Chapter 7:15] which governs the representation of parties before an arbitral tribunal.  It reads as follows:

“(4) At any hearing or any meeting of the arbitral tribunal of which notice is required to be given under paragraph (2) of this article, or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice. (Emphasis added)

A reading of section 92 of the Act clearly excludes labour consultants.  They do not fit into any of the categories of persons clothed with the mandate to represent those appearing before the Labour Court.

The same however, cannot be said of Article 24 (4) of the Arbitration Act, supra.  It is couched in broader terms than section 92 of the Act.  It cannot be said from, a reading of this provision, that labour consultants are excluded from appearing before arbitrators.  To do so would be, in my view, attributing to the provision a meaning that does not appear from a clear and simple reading thereof.  Words in a statutory provision must be given their ordinary grammatical meaning.  See Chegutu Municipality v Manyora 1996 (1) ZLR 262

Representation of parties in the Labour Court and arbitral tribunals is governed by section 92 and Article 24 (4), respectively.  It seems to me the representation of parties in the arbitral tribunal is not as circumscribed as it is in the Labour Court.  For this reason, I am of the view that there is no valid basis for impugning the locus standi of a labour consultant appearing on behalf of a party in an arbitral tribunal.  The arbitrator therefore misdirected herself in declining to deal with the matter on the merits, on the basis that the labour consultant representing the claimant had no locus standi to appear before her.

In the circumstances, the appeal must be allowed.  It is accordingly ordered that;

The appeal be and is hereby allowed.

The matter be and is hereby remitted to the arbitrator for determination on the merits.

Each party bears its own costs.

Gama & Partners, appellant’s legal practitioners

Gwaunza & Mapota, respondent’s legal practitioners