Liberty Chichoni v Arbitrator J.T. Maware and TM Supermarket (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/75/2014
HARARE, 27 JANUARY 2014
CASE NO. LC/H/75/2014
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO. LC/H/75/2014

HARARE, 27 JANUARY 2014	    		     	       CASE NO. LC/H/75/06

AND 14 FEBRUARY 2014

In the matter between:-

LIBERTY CHICHONI						Applicant

VS

ARBITRATOR J.T. MAWIRE					1st Respondent

AND

TM SUPERMARKET (PVT) LTD					2nd Respondent

Before Honourable R. Manyangadze, J

For Applicant 		-	In person

For Respondent		-	Mr. B. Peresuh (Legal Practitioner)

MANYANGADZE, J:

This is an application asking this court

“to issue an order to force the 1st Respondent to issue out an arbitral award that meets the requirements of Labour Act [Cap 28:01] section 98 subsection 14”

The Applicant avers that the arbitral award granted by Honourable J.T. Mawire on September 2010 does not comply with section 98 (13) and (14) of the Labour Act, in that it does not sound in money.  He now wants this court to issue an order compelling the Arbitrator to issue an order that	sounds in money.

The 1st Respondent has not filed any opposing papers.  It is therefore presumed he will abide by any ruling that will be made by this Court on the matter.

The 2nd Respondent, in its opposing papers, has raised a number of issues.  Although these issues have been classified under two headings, as points in limine and submissions on the merits, they are all attacking the validity of the application.

In view of this, the two headings are hardly distinguishable from each other.  The points raised are inter-related, impugning the validity of the order being sought and questioning the competence of this court to issue such an order.  For instance, paragraph 3.1, in the Heads of Argument raises the issue of res judicata.  This is, as I see it, inseparably linked to paragraph 4, under merits, in which it is argued that the 1st Respondent cannot be compelled to issue an award as he has done so already and is therefore functus officio.  In other words, it is contended that it is not proper for this court to direct the lower tribunal to revisit its award, an award in which it has fully disposed of the issues before it.

I will deal with this issue first, as it has a significant bearing on whether or not it is necessary to delve into the other issues raised.  In this regard, a brief background to the matter should help put the issues in proper perspective.

The Applicant and Respondent have been engaged in a very longstanding labour dispute, dating back to 2005.  The acrimonious dispute has seen them appearing in the Labour Court and the arbitral tribunal a number of times.  It is not necessary to dig into the whole history of their litigation, for purposes of this application.  It suffices to pick up their story from the arbitral award of 7 September 2010.

In the arbitral award of 7 September 2010, the arbitrator, inter alia, ordered that:

The claim for salary arrears and commission for the period February 2005 to January 2009 was not payable.  It fell away as the currency involved, Zimbabwean dollars, had become valueless and there was no justification for paying Applicant in foreign currency.

Salary arrears and commission for the period February 2009 to February 2010 were payable, in United States dollars, as this was now legal tender.  The salary arrears and commission would factor in any salary adjustments that occurred during the period.

The Applicant noted an appeal in the Labour Court against that part of the arbitral award that denied him salary arrears from February 2005 to January 2009.

The Respondent noted an appeal in the Labour Court against that part of the arbitral award that awarded salary arrears from February 2009 to February 2010.  What happened is basically that each party appealed against a portion of the arbitral award that was not in its favour.

On 29 January 2013, the parties entered into an out of court settlement, in terms of which Applicant was paid an amount of $12 690.00, in full and final settlement of the claim in case No. LC/H/491/10.  This case was the appeal that had been filed by the Respondent.  The settlement therefore disposed of the issues in the appeal, and the Respondent consequently withdrew its appeal.

Applicant’s appeal was heard by Honourable Justice Musariri on 16 August 2013.  The Respondent was ordered to pay the Applicant an amount of US$15 760.00 to cover salary arrears for the period February 2005 to January 2009.  According to submissions by the Respondent, this amount has since been paid and settled.

Applicant sought to register the arbitral award of 7 September 2010 in the High Court, for purposes of enforcement as provided for in section 98 (14) of the Labour Act.

The High Court declined to entertain the application, on the basis that “The arbitral award does not sound in money”.

Applicant filed an application for quantification of the award on 17 April 2013.  This application was dismissed on 7 August 2013.  The arbitrator, Honourable J.T. Mawire, ruled that there was nothing to quantify as the parties had concluded a settlement out of court and had the appeal withdrawn.

It is against this background that the Applicant seeks an order compelling the Arbitrator to issue an order that sounds in money.

In my view, what the Applicant is asking this court to do is to issue an order compelling the Arbitrator to quantify his award.  The only way in which an award can be made to sound in money is to quantify it.  It appears he wants all the necessary computations done, which will result in a single total figure claimable from Appellant as the arrear salaries and commission in question.

A look at the chronology of events outlined above shows that this computation was done and agreed to between the parties.  It resulted in the Deed of Settlement of 29 January 2013, details of which are part of the record.  For ease of reference, they are reflected as follows:

Table 1

This agreement was in full and final settlement of the claim against Respondent, as a result of which the Respondent withdrew its appeal.  It is for this reason that the Arbitrator dismissed the application for quantification on 7 August 2013.  The Arbitrator remarked;

“With the settlement and the withdrawal of the appeal, there is nothing to quantify with respect to the salary and commission back pays.  In the circumstances, it is ruled that there is nothing to quantify and the claimant’s application is consequently dismissed in toto.”

This is an agreement the Applicant voluntarily entered into.  There is no evidence to show that Applicant was induced by fraud or duress to conclude the agreement.

The Arbitrator, having carefully exercised his discretion in dismissing the application for quantification, cannot be made to revisit his order. I agree with 2nd Respondent’s submission, under paragraph 4 of its Heads of Argument, that 1st Respondent cannot be compelled to issue an award when he has done so already.  He is functus officio.

In the circumstances, Applicant’s remedy would be an appeal against the Arbitrator’s dismissal of his application.  As 2nd Respondent has correctly observed, under paragraph 3.2 of its Heads of Argument, the application

“… is, in effect, an appeal masquerading as an application.”

This is not an application for a rescission of a default judgment.  This is also not an application for a review of the arbitral proceedings.  There are no accusations of procedural irregularities in the manner the proceedings were handled.  The Applicant simply wants this Court to order the Arbitrator to do a quantification which, after a proper exercise of judicial discretion, he dismissed.  It is not competent for this court to issue such an order.  It is tantamount to ordering the Arbitrator to reopen a case that should be the subject of an appeal, assuming valid grounds exist for such appeal.

On this basis alone, I am unable to uphold the application.  In the result, it is ordered that the application be and is hereby dismissed with costs.

Honey & Blankenberg, respondent’s legal practitioners

………………………………………………..

MANYANGADZE J