Jairos Mbonyeya & 242 Others v Marange Resources (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/476/14
HELD AT HARARE 26TH JUNE 2014
CASE NO
JUDGMENT NO LC/H/476/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/476/14

HELD AT HARARE 26TH JUNE 2014			CASE NO LC/H/158/14

& 1ST AUGUST 2014

In the matter between:-

JAIROS MBONYEYA & 242 OTHERS			Appellants

And

MARANGE RESOURCES (PVT) LTD			Respondent

Before the Honourables P Muzofa, Judge

R.F. Manyangadze, Judge

L.M. Murasi, Judge

For Appellants		Mr C  Mucheche (Legal Practitioner)

Prof L Madhuku (Legal Practitioner

For Respondent		Mr Ndudzo (Legal Practitioner)

Mr Zvinavakobvu (Legal Practitioner)

MURASI, J:

Appellants were in the employ of the respondent.  Pursuant to a decision by respondent to transfer appellants to another company, appellants approached the Ministry of Labour.  The matter was subsequently referred to arbitration before Honourable Sambureni who ruled in favour of appellants.  Appellants later approached Honourable Sambureni for quantification of damages which was granted.  Respondent approached this Court appealing against the award.  However, this action was dismissed.    This matter finally landed with Honourable Segula who dismissed appellants’ claim for arrear salaries and benefits.  The decision by Honourable Segula is the subject of this appeal.

At the commencement of the proceedings, respondent raised a point in limine.  It was submitted that Marange Resources Security Employees (hereinafter MRSE) was not a party to the proceedings.  It was further argued that there was no nexus between Marange Resources Security Employees and the employees before the Court.  It was further stated that an entity without  legal status cannot institute legal proceedings.  Respondent further submitted that Marange Resources Security Employees was incapable of instituting labour proceedings.

Appellants, on the other hand, submitted that the Labour Court is a specialised court charged with administering social justice and stated that respondent wanted the matter to be dismissed on a technicality.  It was argued for appellants that the 243 employees before the Court were the persons who appeared before Honourable Sambureni.  It was further submitted that the practice at the Ministry of Labour was not to record all the names of persons in a claim but to give them a generic name for the purpose of dealing with the matter.  It was stated that the reasoning in the C.T. Bolts  (Pvt) Ltd v Workers Committee SC 16/12 case was distinguishable as this was not a committee but employees in their individual capacities.  It was further submitted that the listing of the appellants was done out of abundance of caution.

The Court indicated that ruling on the point in limine would be in in the main judgment and proceeded to hear the matter on the merits.  The Court will proceed to deal with that issue.  Precedent has cautioned against making decisions based on technicalities (see Dalny Mine v Muza Banda SC 39/99)  The argument by the appellants is persuasive, that it is the same employees who appeared before Honourable Sambureni who appear before this Court.  Honourable Sambureni dealt with this issue and stated that:

“In my view, the evidence from the record identifies the claimants as all the 243 employees who in this matter are represented by Mr Sithole from the claimants’ duly registered trade union.  A registered trade union is mandated in terms of the Labour Act [Chapter 28:01] section 29 (4) (d) to legally represent its members.”

The other issue concerns respondent’s payment into the High Court

monies to be distributed to appellants.  It is trite that a litigant who so acts that he indicates to the other party that he has acquiesced to judgment should be deprived of the right to appeal.  The respondent’s payment of money equivalent to the 243 employees’ claims should lead to the inescapable conclusion that it impliedly acknowledged the existence of the 243 employees as litigants and labelled Marange Resource Security Employees.  It is also correct that formal acquiessence is not necessary, it is sufficient that conduct by one of the parties leads the other to believe this was the position.  (See generally Cohen v Cohen 1980 ZLR 286.)  It is the Court’s considered view that the appellants are properly before the Court.

In dealing with the merits, appellants submitted that Honourable Segula erred by holding that appellants were not entitled to payment of arrear salaries.  It was argued that this was inconsistent with her other findings in the matter.  Appellants stated that they were owed arrear salaries on the premise that the employer – employee relationship subsisted.  Appellants submitted that Honourable Segula was supposed to find for appellants in respect of non-payment of damages.  It was submitted that the Honourable Arbitrator was supposed to decide whether appellants were no longer respondent’s employees.  If she came to that conclusion, she was supposed to determine when they ceased to be employees and had to deal with the issue of damages for loss of employment.

Respondent’s Counsel called for the dismissal of the appeal in its entirety.  It was submitted that there was a misunderstanding of what was before Honourable Segula.  The Court was referred to pages 63 to 74 of the record which reflects the Terms of Reference placed before Honourable Segula. Respondent’s Counsel further referred the Court to paragraph 14.3 on page 74 of the record which was the “prayer and operative demand.”  It was submitted that appellants received terminal benefits and no issue of reinstatement was raised.  It was argued that appellants were very clear about what they were after, i.e., back pay, gratuity, overtime allowances, public holiday allowances and night allowances.  It was stated that this was a claim for terminal benefits.  It was also averred that appellants evaded the issue of gratuity in their address.  A reference was made to the Mining Regulations 1990, Statutory Instrument 152 of 1990 in that entitlement to a gratuity relates to a termination of employment.  It was stated that appellants made a choice not to claim and therefore cannot  fault the Honourable Arbitrator.

It is trite that appeals are based on the record of the lower tribunal.  A reading of the decision by Hon Sambureni shows that he clearly stated that he did not consider the issue of damages in lieu of reinstatement because it was a matter not placed before him.  It is also a truism that an arbitrator is bound by the terms of reference referred to him.  Honourable Segula had several terms of reference to deal with.  The first one, which is the contentious one, was whether or not the affected employees were owed arrear salaries and if so, the quantum thereof.  Honourable Segula finalised this matter by stating as follows:

“The parties raised issues for quantification amongst them back pay to be payable to the claimants, gratuity, etc to which the claimants were paid for six months.  Arbitrator Sambureni was also clear that the claimants did not claim for damages of loss of employment hence it was not an issue before him.  This at the end of the day, was an omission to the claimants’ part.” (My emphasis)

Appellants sought to argue that the Honourable Arbitrator should have

dealt with the matter as it was implicitly implied in the term of reference.  The question is why did appellants omit this particular head in their claims?  The arbitrator could not have mero motu awarded the damages.  McNALLY JA (as he then was) had this to say in S.T. Chitanda v United Touring Co. Ltd SC 7/99 at p 3 to 4 of the cyclostyled judgment.

“The function of the Tribunal was to deal with the appeal on the basis of the grounds

of appeal raised by the appellant…

If the argument was not raised before the Tribunal, the Tribunal cannot be faulted for not dealing with it.  It cannot be a ground of appeal from the Tribunal that it did not deal with a matter it was not asked to deal with.”

Appellants did not ask the Honourable Arbitrator to deal with the

damages in question.  In fact, both Honourable Segula and Honourable Sambureni pick this out and comment on the omission.  The Honourable Arbitrators could not have awarded any damages without it being raised and no evidence being placed before them by the appellants (See generally Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Pharaoh Zakeyo S 32/2013).  This would have meant that each of the 243 employees was supposed to give evidence as to how he/she had mitigated their loss and what period of time it would take to find alternative employment.  Such evidence was not placed before the Arbitrators because the particular head had been omitted from the claim.

A further point to note is that appellants had claimed gratuity and had been paid.  Ordinarily, gratuity is paid on termination of employment and as submitted by respondent’s Counsel, this signified the severance of the employment relationship between the parties.  The Court noted the difficulty appellants’ Counsel had in addressing this issue as no reference was made to the payment of this gratuity in oral submissions.  This was clearly picked up by respondent’s Counsel who referred the Court to this apparent inconsistency in appellants’ case.

Precedent has settled the issue of when an appellate court can interfer with a decision of a lower tribunal.  An appellate court can only do so where the decision arrived at is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a decision (See Hama v NRZ 1996 (1) ZLR 664 (SC).  The Court is of the considered view that Honourable Segula was not enjoined to consider the award of damages in lieu of reinstatement as stated by appellants as it was not an issue brought before her for determination.  Further, Honourable Segula had clearly made a finding that this had not been brought before Honourable Sambureni.  This is confirmed by Honourable Sambureni’s decision on the matter.  Appellants clearly omitted to place this before Honourable Sambureni.  The Court finds that the decision of Honourable Segula cannot be faulted.

In the result, the Court finds that the appeal is devoid of merit and is accordingly dismissed with costs.

………………………..

MURASI J

………………………  I agree

MUZOFA J

……………………..  I agree

MANYANGADZE J

Matsikidze & Mucheche, appellants’ legal practitioners

Mutamangira & Associates, respondent’s legal practitioners