Magic Moments Transport v Tirivanhu Hove

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/384/16
HELD AT HARARE ON 8TH JUNE, 2016
CASE NO. LC/H/447/14
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/384/16

HELD AT HARARE ON 8TH JUNE, 2016 	    CASE NO. LC/H/447/14

AND 23RD  JUNE, 2016

In the matter between:-

MAGIC MOMENTS TRANSPORT					    Applicant

And

TIRIVANHU HOVE							    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr O. Zimbodza (Legal Practitioner)

Respondent	:	In person

MHURI J.

On the 7th May, 2014, an arbitral award was issued ordering Appellant to pay Respondent

Cash in lieu of notice 					=	$891,00

Cash in lieu of days leave					=	$891,00

Housing allowance February 2009 to July 2012	=	$625,00

Total								       $2 407,00

Aggrieved by this award, Appellant filed this appeal on the following summarized grounds of appeal, to wit

That the Arbitrator crafted her own terms of reference.

That the audi alteram partem rule was flouted.

That the Arbitrator plucked figures from the air as the amount of $891,00 and $625,00 and the 90 days leave were not substantiated.

This appeal in my view is totally devoid of any merit.

The record shows that appellant was invited to attend the arbitration proceedings on 3 occasions but did not attend.  The grounds that, the audi alteram partem rule was not followed is not an appeal ground but a ground for review.  This ground is therefore improperly before the court as Rule 15 (3) was not complied with.  Appellant properly conceded to this point.

This notwithstanding, the record shows that appellant filed with the arbitrator detailed written submissions countering respondent’s claim.  The arbitrator considered these submissions in determining the matter that was before him.  It cannot therefore be said that appellant was not heard.

Filed of record is a Certificate of No Settlement on which it is stated that the dispute concerned

summary dismissal

non-payment of allowances

and off days.

Also filed of record is a Reference to arbitration Form LR4 on which the

terms of reference are stated as;

Whether or not there was summary dismissal, if so the remedy thereof

Whether allowances and off days were paid, if not the quantum thereof.

The notification to party filed of record also states

alleged summary dismissal and non-payment of allowances and off days.

Respondent filed his claim before the arbitrator on 10 September 2013 to

which appellant responded on 11 November 2013.  The claim was based on unlawful dismissal and non-payment of terminal benefits.  He claimed that he was not paid his leave days and housing allowance.  He claimed;

3 months notice pay at $297.00 per month = $891.00

3 months leave days at $297.00 per month = $891.00

Housing allowance February 2009 to 31 July 2012 (25 months) at

$25.00 per month = $625.00

Housing allowance February 2012 to September 2013 (21 months) at $35.00 per month = $735.00

Unpaid wages August 2012 – August 2013

12 months at $270.00 per month =

$3240.00

3 months salary as damages for premature loss of employment at $297

$891.00

Total $7327.00

The award at page 1 (record page 6) states

“unlawful dismissal and non-payment of allowances and off days”

as the issue in dispute.

The award clearly shows that the arbitrator determined the unlawful dismissal issue, unpaid leave days issue as a terminal benefit and the housing allowance issue.

All these issues were within the confines of the terms of reference to the arbitrator.  I find appellant’s argument that the leave days issue was not part of the terms but the off days issue as nit picking.  In its written submissions, appellant addressed the leave days issue.  It could have simply objected stating as it is doing now, that leave and off days are different.

The above summation shows that the arbitrator did not craft any terms of reference.  The arbitrator determined the issues as referred to and presented before him.

In his analysis of the submissions placed before him, the arbitrator found as proved some of the claims and as unproved other claims.  He rejected the claims for unpaid wages, housing allowance for February 2012 – September 2013 and damages.

He granted

cash in lieu of notice

cash in lieu of leave

housing allowance for the period February 2009 – July 2012

The respondent’s claim clearly stipulates the period and monthly

payment for each claim.

the notice pay is for 3 months at a monthly salary of $297.00

housing allowance is for February 2009 to 31 July 2012 i.e. 25 months at $25.00 per month.

Leave is for 3 months (90 days) at $297.00 per month.

Nothing can be as clearer as this.

To argue that it is not clear how the figures were arrived at or were not

justified is clutching as straws.  The arbitrator relied on Section 13 of the Act and the Collective Bargaining Agreement for the Transport Industry in granting the claim.

Further respondent did no counter that these figures ($25.00 for housing allowance, or $297.00 the monthly salary) used, were not provided for in the Collective Bargaining Agreement.

The grounds of appeal are totally baseless.  This is an appeal that was launched solely for the purpose of delaying the day of reckoning thereby prejudicing respondent.

The appeal being devoid of merit as is found, it be and is hereby dismissed.

The award, is in turn confirmed.

Zimbodza and Associates , appellant’s legal practitioners