Oasis Industries v Charles Pagiwa and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/697/14
HARARE, ON 25th SEPTEMBER, 2014
CASE NO. LC/H/474/14
AND 24 TH
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IN THE LABOUR COURT OF ZIMBABWE                               JUDGMENT NO. LC/H/697/14

HARARE, ON 25th SEPTEMBER, 2014		 	            CASE NO. LC/H/474/14 AND 24TH OCTOBER, 2014

In the matter between

OASIS INDUSTRIES 				–	APPELLANT

And

CHARLES PAGIWA AND ANOTHER		-	RESPONDENT

Before The Honourable E. Muchawa, J

For Appellant :	Mr G. Makings (Legal Practitioner)

Respondents   :	Mr C. Pagiwa and Mr T. Banda (Self Actors)

MUCHAWA J,

This is an appeal against an arbitral award.

Respondents are former employees of the Appellant. It seems that the last contracts signed were fixed term contracts running from 1st January 2012 to 31st March 2012.

First Respondent’s contract was terminated on the 9th of February 2012 and he was paid four months’ salary including housing and transport allowance for two months totaling US$1 462.00. Other amounts paid out to first respondent before the termination were as follows:

In October 2011 housing allowance of $1 080.00 and transport allowance of $528.00 for the period 2010 to 2011.

An overtime payment of $615.00

Cash in lieu of leave of $340.00

Second Respondent’s contract was terminated on the 31st January 2012. Second Respondent was paid the following:

Salary for 2 months being 		$597.00

Cash in lieu of leave 		$340.00

Gratuity 				$185.00

Overtime 				$176.00

Transport allowance 		$383.00

The claim before the Arbitrator was for terminal benefits. Respondents were claiming the following;

The operative part of the award orders Appellant to pay as claimed.

The amounts paid over time were paid and signed for by Respondents who had Trade Union representation. In one instance the Zimbabwe Federation of Trade Unions represented them to recover transport allowances. The Affirmative Action Group in the presence of a Labour Officer assisted and they signed for gratuity. The  Zimbabwe Federation of Trade Union seems to have assisted recover cash in lieu of leave.

My attention was drawn to the final agreement whose operative clauses are as follows:

“		Memorandum of Agreement

Between

Oasis Industries (Pvt) Ltd.

I Charles Pagiwa has accepted and Oasis Industries (Pvt) Ltd has agreed to pay outstanding  underpayment of :- basic pay, overtime, leave pay and housing allowance.

The recalculated amounts are dated from January 2010 to December 2011.

The payment will be a full and final payment and the said employee will not have any further clams against Oasis Industries.

…………………………………………..”

It appears that the Arbitrator in casu was not available for the oral hearing on four occasions on which he had set the matter down. He proceeded to determine the matter on the basis of written submissions from Respondents in respect of quantification. Appellants claim to have made original submissions and these were supported by the agreements signed when payments were made and the contracts. The Arbitrator has since passed away.

The grounds of appeal raise the following issues for my determination.

Whether or not the Arbitrator erred in determining the matter without receiving Appellant’s final submissions.

Whether Respondents could both sign in full and final settlement and make a further claim against Appellant.

Issue 1

It is common cause that an oral hearing could not be held on the quantification.  The record also shows that Respondents submitted their claim to the Arbitrator. Appellant’s submissions are not available on the record and the arbitral award clearly states that the Appellant did not submit its position.

Appellant argues that a determination should not have been issued in absence of its submissions.

Respondents argue that the award is therefore a default judgment and the proper recourse is to apply for rescission of judgment to the tribunal aquo and not to appeal.

I agree with Respondents as the law supports them in this regard. HOVE J in Cafca Ltd. v Daniel Vutande LC/H/592/2013 sets are the reasons for this;

parties should not disdain proceedings before Arbitrators and restrict themselves to appearing only in the Labour Court, making this Court a Court of first instance rather than a Court that hears appeals from decisions of Arbitrators.

it would be completely undesirable and cause anarchy in the proper administration of justice if litigants ignore proceedings before Arbitrators for no reason, only to start with an appeal at the Labour Court.

The Labour Court is not best suited to investigate the issues in relation to reasons why the Appellant would have been in default.

I find that this Court has no jurisdiction to hear an appeal based on the default judgment of an Arbitrator as a default judgment is a default judgment. (See Redstar Wholesalers v Livingstone Mutomba SC 142/04). There is no basis to proceed to issue 2.

The complication in this case is however  that the Arbitrator, one Tapiwa Magureyi is deceased. The justices of this matter would therefore not be served by referring the Appellant to apply for rescission of judgment. Instead, I believe, a quashing of the arbitral awards in question and a referral for a fresh arbitral hearing would best serve the parties.

Accordingly,

The arbitral proceedings before the late T. Magureyi be and are hereby quashed.

The parties are referred back to the Ministry of Labour, Chinhoyi Labour Relations Department for the appointment of an Arbitrator, for a fresh arbitral hearing on the initially agreed terms of reference.

George Timothy Makings – Appellant’s legal practitioners