Kelvin Zviuya & 53 Others v Wattle Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/08/2016
HARARE, 13 MAY 2016 &
10 JUNE 2016
CASE NO LC/MC/29/2015
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/MC/08/2016

HARARE, 13 MAY 2016 &				                CASE NO LC/MC/29/2015

10 JUNE 2016

KELVIN ZVIUYA & 53 OTHERS						APPELLANTS

WATTLE COMPANY (PVT) LTD					RESPONDENT

Before the honourable G Musariri : Judge

For the Appellants	C Chibaya (Attorney)

For the Respondent     T Mukwindidza  (Attorney)

MUSARIRI J:

On 15th June 2015 Arbitrator N A Mutongoreni issued an arbitration award. He found that the respondent committed an unfair labour practice by failure to pay appellants’ wages amounting to US$97 383-68. However he ordered that the amount be paid over a period of twenty months.  The appellants then appealed to this Court. The respondent opposed the appeal. The sole ground of appeal read as follows:

“The honourable Arbitration (sic) grossly misdirected himself by making a finding that the respondent was to pay the outstanding salaries to the appellants over a twenty months (sic) period an issue which was not part and parcel of his terms of reference thereby making an order (which) was ultra vires his mandate.”

The crux of the respondent’s reply read thus:

“2.	The Honourable Arbitrator did not misdirect himself and he did not act ultra vires his mandate. It was within the terms of reference of arbitration that required him to determine an appropriate relief. He properly exercised his discretion and arrived at twenty months. There is nothing ultra vires in his conduct.”

I must say at once I disagree with the respondent’s argument. The respondent admitted owing the appellants the amount in question. That was a debt overdue for payment. The arbitrator had no power to change the due date of payment. By purporting to do so he

was unlawfully interfering with the appellants’ right to recover the debt. The arbitrator sought to justify his award on account of the respondent’s financial distress. However such is not a defence to a claim for payment of a debt. In fact the issue of financial distress should have been discussed during conciliation which preceded the arbitration. If the appellants could not be persuaded at conciliation to accept delayed payment then the matter could only be referred to arbitration (as was done) for adjudication of their rights. In these circumstances the arbitrator had no discretion but to order payment forthwith as the debt was due for payment.

Both parties attorneys stated that the debt has since been reduced by part-payments to an amount of US$53 561-02. I shall therefore set aside the arbitrator’s award and order the respondent to pay the reduced amount.

Wherefore it is ordered that:

The appeal be and is hereby allowed;

The arbitration award issued by Arbitrator N A Mutongoreni is set aside; and

The respondent shall pay the appellants an amount of US$53 561-02.

G Musariri

J-U-D-G-E