Kuwadzana Secondary School v Langton Muvembi & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/513/16
HARARE, 19 JULY 2016
CASE NO.
JUDGMENT NO. LC/H/513/2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/513/16

HARARE, 19 JULY 2016				     CASE NO. LC/H/530/15

AND 9 SEPTEMBER 2016

In the matter between:-

KUWADZANA SECONDARY SCHOOL				Appellant

And

LANGTON MUVEMBI						1st Respondent

And

OLIVIA CHIMHENO						2nd Respondent

And

GETRUDE BENJAMIN						3rd Respondent

Before The Honourable E. Muchawa, Judge

For Appellant		F. Watungwa (Legal Practitioner

For 1st & 2nd Respondents	P.T. Chakanyuka (Legal Practitioner)

For 3rd Respondent	In default

MUCHAWA, J:

This is an appeal against an arbitral award.

The three respondents were employed by the appellant at various times and in various capacities.  The first respondent was employed as a security guard in May 2011.  The second respondent served as a receptionist/clerk with effect from June 2013 whilst the third respondent was employed as a general worker in January 2013.

On the 28th of February 2014 all three respondents were served with letters written as follows;

“RE:	NOTIFICATION OF RETRENCHMENT DUE TO CURRENT ECONOMIC HARDSHIPS FACED BY THE SCHOOL

It is with regret that I hereby notify you of your due retrenchment which will be effected on 01 June 2014 because of the current economic hardships.

Effectively, you will be on notice for three months stating from 01 March 2014 on full pay.

You are also being notified that you will receive the terminal benefits due to you when funds permit. …..”

On the 1st of October the respondents lodged a complaint alleging non payment of retrenchment packages, leave and underpayment of wages with the labour officer.

The labour officer on the 23rd of October issued out a certificate of no settlement and a reference to arbitration with the following terms of reference;

“To determine the payment plan of the retrenchment packages of

Langton Muvembi			$2 643.50

Olivia Chimheno			$7 820.00

Gertrude Benjamin			$1 115.00”

The appellant then instructed legal practitioners to represent it before the arbitrator.  The legal practitioners made submissions to the effect that the issue before the arbitrator should be whether or not the respondents were entitled to the various amounts claimed.  It was argued that the respondents were instead only entitled to amounts to be calculated in terms of Section 13 of the Labour Act [Chapter 28:01].

It was further contended that the purported termination fell short of a retrenchment as it failed to comply with the provisions of the Labour Relations (Retrenchment) Regulations Statutory Instrument 186 of 2003.

The arbitrator found that her mandate was spelt out in the terms of reference and this was to determine the payment plan of the retrenchment package already agreed on.  She ordered that the agreed amounts be paid in three instalments with effect from 30th June 2015 TO 31 August 2015.

The grounds of appeal before me are;

The Learned Arbitrator erred at law in concluding that the issue for determination before her related to a payment plan yet it was abundantly clear from appellant’s submissions in the Court a quo that liability was disputed and had to be determined first.

That as liability was disputed as stipulated above, the learned Arbitrator erred at law in failing to resolve the issue of liability first, before delving into issues of payment plan.

That the Learned Arbitrator erred in law in treating the respondents as beneficiaries of a retrenchment exercise yet in law no such retrenchment never took place (sic).

The Honourable Arbitrator erred in law in completely disregarding appellant (respondent in the Court a quo’s) submission that the matter before her fell to be determined within the purview of Section 13 (1) of the Labour Act, [Chapter 28:01] yet that was the correct legal position.

The appellant prays for the setting aside of the arbitral award.  The appeal is opposed and I deal with grounds 1 and 2 together first before looking at grounds 3 and 4.

Grounds 1 and 2 – Whether or not the arbitrator should have considered the issue of liability first

It is the appellant’s argument that the issue referred to conciliation was not settled as shown by the certificate of no settlement on Form LR2 and page 27 of record.  That issue related to the alleged non payment of retrenchment packages, leave and underpayment of wages.

I was then referred to the Reference to Arbitration in Form LR4 which sets out the terms of reference as determining a payment plan.

It is argued that the arbitrator should therefore have dealt with the issue of liability first in line with the appellant’s submissions filed with the arbitrator.

The respondents argue that the arbitrator correctly stood guided by the terms of reference referred from conciliation.

The case of Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & ORS SC/6/2015 has settled this matter.

Where a dispute is referred to compulsory arbitration by a labour officer, section 98 (4) of the Labour Act enjoins the officer to determine the arbitrator’s terms of reference after consultation with the parties.  In casu the sole issue to be determined by the arbitrator as framed by the referring authority was as follows;

“To determine the payment plan of the retrenchment packages ….”

It appears from the letter of complaint and the reference to arbitration that at the time of referral, the issue remaining to be resolved was the payment plan hence the certificate of no settlement.  Liability and the amounts to be paid were already settled.

It was therefore not within the arbitrator’s remit to deal with the question of liability as that would be exceeding her terms of reference and that would be a clear misdirection at law.

It is in fact the terms of reference which spell out the issues before the arbitrator, and not the submissions by the parties.

I therefore find that the arbitrator did not err in not dealing with the question of liability.

Grounds 3 and 4

In the light of my findings in respect to ground 1 and 2, I reiterate that the submissions by the appellant relating to the validity of the retrenchment exercise and whether the terminal benefits were to be calculated in terms of section 13 (1) of the Labour Act, were not properly before the arbitrator.  Those issues were not before her.  She therefore did not err by disregarding them.

Consequently the appeal be and is hereby dismissed with costs for lack of merit, in its entirety.

F. Watungwa & Partners, appellant’s legal practitioners