Ilford Services (Pvt) Ltd v Garikai Mbowekera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/308/13
HELD AT HARARE 27TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/308/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/308/13

HELD AT HARARE 27TH JUNE 2013		   CASE NO LC/H/142/12

ILFORD SERVICES (PVT) LTD				Appellant

GARIKAI MBOWEKERA					Respondent

Before The Honourable G Musariri, President

For Appellant		Mr I Musimbe, Attorney

For Respondent		Mr B Muchengeti, Attorney

MUSARIRI, G:

On 10th February 2012 the Honourable G Fereshi made an arbitration award.  In terms thereof he ordered Appellant to pay Respondent an amount of $11 520 as “arrear rentals and school fees due to him.”  Appellant then appealed to this Court against the award.

Appellant ‘s case was summarised in its attorney’s Heads Of Argument as follows,

“Submissions In Brief

2.1	It is submitted that the Arbitrator erred in law and grossly

misdirected himself in upholding that the Labour Officer had jurisdiction to deal with the matter of unfair labour practice when the same parties had a matter pending at the Retrenchment Board.  Whereupon the issue of arrears and terminal benefits were to be decided upon.

2.2	The Arbitrator erred in law in failing to find that since the retrenchment package agreement was signed on 15 September 2011, as at date of arbitration, 30 November 2011, the Respondent no longer had any cause of action since the same employment contract on which he based the unfair labour practice had been terminated through retrenchment.  Moreover the package agreement waived all the arrears which the company owed Respondent inclusive of the arrear school fees and rentals if any were owed.

22.1	The Arbitrator ought to have found that the acceptance by the Respondent of the package in full and final settlement amounted to waiver of any other claim on arrears or payment which must have been due to him.”

Whether the Labour Officer, and by extension the Arbitrator, had jurisdiction to deal with the matter is a point of procedure.  It does not deal with the substance or merits of the matter.  Procedural irregularities are raised by way of review rather than appeal.  Section 89 (1) (di) of the Labour Act Chapter 28:01 empowers this Court to,

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;”

Accordingly Appellant should have raised the issue of jurisdiction by way of review. It proceeded via an appeal and thus foreclosed the argument on jurisdiction.

The remaining issue becomes whether or not the matter was settled by payment of the retrenchment package.  Appellant’s erstwhile attorneys wrote to Respondent a letter dated 15th September 2011.  A copy is filed of record.  The letter is titled “Re: Retrenchment Package”   It enclosed a payment of US$41 688.00.  At the bottom Respondent signed an acknowledgement on the same date.  The acknowledgment read thus,

“I, Garikai Mbowekera … do hereby acknowledge receipt of the sum of US$41 688.00 … in full and final settlement of my arrears, terminal benefits and retrenchment package due to me.”

(The underlining for emphasis is mine.)

The acknowledgement of the payment especially the reference to “arrears” covered all that was owed by Appellant to Respondent including “the rentals and school fees.” If that was not so, one would expect the acknowledgement to make an exception.  None was made.  Accordingly I consider that the acknowledgement effectively settled the matter.  I am fortified in this view by the case of Mbisva v Rainbow Tourism  2009 (2) ZLR 33 (S) at p41 C where Sandura JA, as then was, stated that,

“As he badly needed some money, Vimbai went to the Hotel on 25 January 2005 and signed the MOA declaring that the labour dispute had been settled on the terms and conditions set out therein.  In my view, that declaration is binding on him.”

(The underlining for emphasis is mine.)

Likewise Respondent in casu is bound by the acknowledgment of receipt of payment.  He could not pursue the claims against his employer (Appellant) which he had filed earlier.

Wherefore it is ordered that,

The appeal is hereby allowed;

The arbitration award dated 10th February 2012 made by the Honourable G Fereshi is set aside; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT