Powertel Communications (Pvt) Ltd v Maxwell Chiwara & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/392/2016
HARARE, 10 MAY 2016 &
CASE NO LC/H/503/2015
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/392/2016

HARARE, 10 MAY 2016 &					         CASE NO LC/H/503/2015

23 JUNE 2016

In the matter between

POWERTEL COMMUNICATIONS (PVT) LTD			APPELLANT

Versus

MAXWELL CHIWARA 						     1ST RESPONDENT

And

SHADRECK CHUMA						    2ND RESPONDENT

And

HUDSON MUTARISI						    3RD RESPONDENT

And

FARAI MDYANYAMA						    4TH RESPONDENT

And

SHINGIRAI GOVA							    5TH RESPONDENT

Before the Honourable F C Maxwell J

For the Appellant	G Jakuosi (Legal Practitioner)

For the Respondent 	Mrs F P Machine (Legal Practitioner)

MAXWELL J:

This is an appeal against an award that quantified the damages due to the respondents. The appellant had on 6 November 2014 advised the arbitrator that even though respondents were seeking reinstatement on the basis that their dismissal was unlawful or alternatively the payment of damages and terminal benefits, reinstatement was no longer on option. The quantification proceedings were subsequently held and an award was issued on 18 May 2015. On 4 June 2015 the appellant noted this appeal. The grounds of appeal span over three pages and they number up to 13. The bone of contention are the entitlements that the arbitrator awarded as well as the manner in which the total amount was arrived at.

The respondents deny that there was any misdirection on the part of the arbitrator. They asserted that the quantification was on the basis of the consent to arbitration award, contracts of employment and viva voce evidence of the parties. The respondents pray for the dismissal of the appeal with costs.

The appellant is seeking an order for the remittal of the matter for proper quantification. In my view there is a basis for such an order. To begin with there is a dispute as to what the parties consented to. The appellant submits that the consent did not provide for payment of back pay as no retrospective effect was intended. The respondents on the other hand insist that the agreement was for payment of back pay from the date of dismissal. The honourable arbitrator made reference to the statement of claim. Regrettably on record there seems to be no award in relation to the consent that is on pages 38 to 39 of the record, which was authored by the appellant’s lawyers. The consent simply states the respondents’ prayer as:

“Wherefore the claimant prays for reinstatement on the basis that dismissal was unlawful, or alternatively an order for damages and also payment of their damages and terminal benefits.”

In Chegutu Municipality v Manyora 1996 (1) ZLR 262 it is stated at 268 A-B:

“… the word “reinstate” or “reinstatement” carries no automatic retrospective connotation, either in ordinary language or in our legislation. Normally it means simply that the person concerned will be placed again in his/her former job. If retrospectivity is intended, one would normally look for additional words such as “with effect from the date of dismissal” or “with effect from a particular date in the past” or “with back pay and all benefits from …. date.”

The prayer that was made the basis of the consent does not reveal any retrospective intent. If it was intended, it was not mentioned and clearly the parties are not agreed on that aspect. The position taken by the arbitrator seems to have no justification in the absence of an order that clearly spelt out the retrospective effect. For that reason, the award is subject to interference.

Secondly, the arbitrator admits to have afforded the respondents an opportunity to clarify how they arrived at their quantum which opportunity was not given to the appellant. It is trite that justice must not only be done but must also be seen to be done. Parties should be accorded equal opportunities even in circumstances where the arbitrator is of the view that the other party has nothing meaningful to submit. The record of proceedings must be clear that the opportunity was availed and nothing was submitted. As the appellant was not afforded the opportunity to respond on the clarifications, the award is subject to interference.

Thirdly, the arbitrator left it to the parties to work out cash in lieu of leave for each of the respondents. This is evidence that there was insufficient evidence before the arbitrator. A quantification award should spell out what the claimants are entitled to in total. Paragraph 36 of the award clearly shows that there are no totals for all the claimants as the amount for cash in lieu of leave was indicated as “TBA”. I find it necessary therefore that the parties go back to arbitration so that a final decision is made on what each claimant is entitled to.

The appellant has also put in issue the award of bonus and the calculation thereof. The contracts of employment for four of the respondents, except Hadson Mutarisi clearly states that the bonus is performance related. The arbitrator acknowledges this. On the award whilst the four respondents are awarded performance bonus, Mr Mutarisi is also awarded a bonus. As stated for the appellant, it is not clear how the figures awarded were arrived at. It is therefore in the interest of justice that the calculations are clear to the parties and that this court may have the basis to either support or condemn the amount awarded.

For the above reasons, the following order is appropriate.

The appeal be and is hereby upheld.

The arbitral award be and is hereby set aside.

The matter be and is hereby remitted for re-hearing before a different arbitrator.

Each party bears its own costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Gula-Ndebele & Partners, respondents’ legal practitioners