Johannes Marapiri and 38 Others v Softex Paper Mills (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/14/25
CASE NO LC/H/767/24
HARARE, 24 OCTOBER 2024 AND
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/14/25

CASE NO LC/H/767/24

HARARE, 24 OCTOBER 2024  AND

15 JANUARY 2025

JOHANNES MARAPIRA	APPELLANT

AND 38 OTHERS

SOFTEX PAPER MILLS	RESPONDENT

(PVT) LTD

Before the Honourable G. Musariri, Judge:

For Applicant	- E. Mubaiwa, Unionist

For Respondent	- AK. Maguchu, Attorney

MUSARIRI, J:

On 4th June 2024 at Harare, Arbitrator N Shumba issued an award which ordered respondents to pay appellants their “back pays in arrears” by way of installments over one (1) year Appellants then appealed the award to this Court in term of section 98 (10) of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the appeal.

The grounds of appeal were duet thus,

“1.	The Learned Arbitrator grossly erred and misdirected herself in ordering the

payment of arrear salaries due to the Appellants in instalments on the basis of section 98

(9) as read with section 89 (2) ( c) of the Labour Act [ Chapter 28:01] in circumstances where the aforementioned provisions were not applicable.

2.	The Arbitrator grossly erred and misdirected herself in awarding instalment payments for back pay in circumstances where the Appellants were claiming arrear salaries.”

On the basis of these ground appellants prayed that the award be varied to order payment of of the arrear salaries within thirty (30) days of the award.

In its opposing affidavit respondent countered as follows,

“7.	Respondent for all intents and purposes wishes to settle the amounts owed to the Appellants but has been unable to citing its dire financial situation which Appellants are alive to and were detailed to the Honourable Arbitrator.

Respondent has made strides to improve its financial position which efforts have been supported by the National Employment Council.

The evidence that was placed before the Honourable arbitrator shows that the Respondent is taking strides to improve it financial position, this being an indication that positive strides to improve its financial standing are being made and Respondent is not sitting on its hands.

The Honourable arbitrator acted within her powers by ordering the payment of arrear salaries in instalments, which is provided for in terms of section 89 (2) of the

Labour Act [Chapter 29:01] taking into account what is just and fair for both parties.”

Respondent prayed for the dismissal of the appeal.

Analysis

The arbitrator in his award opined that

“The law in dealing with labour cases has allowed for flexibility and the Arbitrator in this case is guided by S98 (9) of the Labour Act Chapter [28:01] ….

The Tribunal has discretion to either	award that the defaulting employer pays the shorfall as a lumpsum or by way of instalments…..

It is this Tribunal’s view that given the facts presented in this matter, the Claimant would like the Respondent to continue to survive and on the other hand the Respondent is willing to do all it can to be able to pay what it owes. In other words, parties are in a catch 22 situation, between a hard place and a rock even though willingness to support each other is demonstrated. The Claimants have nursed the situation and negotiated to bring finality to the matter. They even pleaded divine intervention in referring to

scriptures whilst the Respondent had difficulty in coming up with a definite date on when they could pay up.

It is common cause that the Respondent has secured measures to restore capacity and their cry for reprieve was granted by the Employment Council for the industry who granted them short time working from 05 May 2024 to 05 August 2024. It would defeat

the purpose of resuscitation of the Company and its survival and that of the employees, for this tribunal to impose an impediment on the Respondent during this period when they are trying

to rise. On the other hand, the tribunal realises the dire situation of the Claimants.Award…. “

Section 98 (9) of the Act provides that,

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

Section 89 (2) of the Act provides that,

“(2)	In the exercise of its functions, the Labour Court may -

(c)	in the case of an application made in terms of subparagraph (ii) of subsection (7) of section ninety three, make an order for any of the following or any other appropriate order -

in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether a a lump sum or by way of installments, as will, in the opinion of the Labour Court, adequately compensate the employee for any loss or prejudice suffered as a result of the

unfair labour practice;”

Apparently these are the provisions used by the arbitrator and respondent to justify the order of payment by instalments. However, section 89 (2) refers to the specific situation contemplated by section 93 (7) where a labour officer either

Refuses to issue a certificate of no settlement, or

Fails or cannot refer the matter to compulsory arbitration;

And a party then refers the matter to the Labour Court for adjudication. Such a situation did not arise in casu as the matter was referred to arbitration resulting in the award which the subject of the present appeal. Therefore section 93 (7) section 89 (2) being inapplicable, the underlying section 89 (2) is inapplicable. In other words, the power to order payment by instalments does not arise. Clearly the arbitrator erred by exercising powers which he did not have. Having determined that payment was due he could only order payment by lump sum. It would be up to the parties to negotiate payment by instalments if they were so inclined,

CASE NO LC/H/767/24

Conclusion

The award, having been made based upon an error at law, should be corrected as prayed for by appellants.

Wherefore it is ordered that;

The appeal be and is hereby granted;

Clause (b) of the Arbitral Award by Arbitrator N Shumba date 4th June 2024 is hereby set aside and substituted with the following

“The Respondent be and is hereby ordered to pay the arrear salaries due to the Claimants within thirty (30) days of the Arbitral Award.”; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E