Rainbow Tourism Group v Rainbow Tourism Group Employees

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/452/2013
HARARE, 10TH SEPTEMBER 2013 &
27th SEPTEMBER 2013
CASE NO LC/H/792/12
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/452/2013

HARARE, 10TH SEPTEMBER 2013 &		  	 CASE NO LC/H/792/12

27th SEPTEMBER 2013

In the matter between

RAINBOW TOURISM GROUP				Appellant

Versus

RAINBOW TOURISM GROUP EMPLOYEES	Respondent

Before The Honourable L Hove, Judge

For the Appellant		A K Maguchu (Legal Practitioner)

For the Respondent	K Magodi (Trade Unionist)

HOVE J:

When this matter came up for hearing, the respondent’s legal practitioner argued that the record was not a true reflection of what had transpired during the hearing.

It was submitted that the arbitrator had cherry picked those issues that he wanted to be in the record and even then, he had not kept a true record of those issues but summarised the submissions made and the issues raised.

It was submitted that this was wrong. Arbitrators ought to keep a true record of proceedings before them. The Labour Court sits as a court of appeal and must be able to decide the matter on the basis of a correct record of proceedings from the arbitrator.

It was further submitted that there were issues that were referred to in the respondents heads of arguments which do not appear anywhere in the record. There were also omissions which related to submissions made on the profitability of the business. Detailed submissions which were alleged to be important details were omitted.

Further examples of omitted details were pointed out in the submissions placed before the court.

It was again submitted that pages 35 to 47 were documents which were filed by one of the parties more than two months after the hearing but they were never served on the applicant’s legal practitioners’ inspite of their address being the correct address for service. It was further alleged that it is evident that the award heavily relied on these documents which were submitted to the arbitrator months after the hearing had closed without the knowledge of the other side.

The applicant’s legal practitioner also raised issue with the manner in which the arbitrator denied him an opportunity to properly present his case.

This arose from the fact that when the parties were called for a hearing, the applicant’s legal practitioner had assumed that it was going to be a pre-arbitration hearing and had not prepared nor anticipated that it was going to be the actual hearing.

He advised the arbitrator that he would need to be prepared to submit his client’s evidence and the arbitrator had ruled that he should proceed and file his evidence after the hearing as submissions.

This, it was submitted, fell foul of the remarks by the Supreme Court in the case of Triangle Limited v Phiri SC 107/04 which highlighted the inadequacy of submissions as opposed to evidence, on issues of fact.

The arbitrator turned a blind eye.

The arbitrator in my opinion misdirected himself in the manner he dealt with the issues raised before him. The record shows that the arbitrator dealt with the matter on the basis that since he was based in Masvingo, he would cut out the pre-arbitration hearing. The main consideration was that it would be too costly to do both the pre-arbitration hearing and the actual hearing as he was based in Masvingo and the matter was in Harare. He also considered that it would be time consuming.

While there is nothing wrong with taking such considerations into account, it would be wrong to give such considerations priority over well established practices that were put in place to ensure that the hearing is proper and in accordance with all the establish tenants of fair hearing and fairness to the parties.

The assumption that the hearing was going to be a pre-arbitral hearing was not an unreasonable assumption in view of the norm that parties are called to a pre-arbitration hearing were parties agree on the filing of submissions and agree on the issues with the arbitrator. The arbitrator therefore failed to exercise his discretion in a manner that would have favoured the interests of justice.

Rushing through a case when doing so would disadvantage the manner in which a party would present their case may save on time and money but it would certainly not be in accordance, with the principles of fairness and justice. The arbitrator ought to have granted the application to postpone the hearing.

This in my opinion may also have been responsible for the arbitrator’s failure to keep an accurate record which correctly reflects what transpired during the hearing. He may have been allowing himself to be overwhelmed, wrongly I would dare say, by the need to make the proceedings less costly and again less time consuming.

The respondent’s representative maintained that the record was a true reflection of what transpired without saying anything further to substantiate his position in view of specific examples given of things that ought to have been in the record, discussions and submissions made during the hearing, but which were not part of the record and also documents that were made part of the record but were only submitted more than two months after the hearing had closed.

The respondents’ representative said the documents were submitted more than two months after the proceedings had closed because the arbitrator asked both parties to file their submissions after the hearing.

There is no evidence of this request for the filing of evidence in the record submitted to the court. This also saves to highlight the alleged omissions from the record.

The applicant prayed that the arbitrator be directed to file a proper record or if he is unable to reconstruct the record, then the court must order a re-hearing.

It was also prayed that in the event that the court is of the view that the record is adequate, then the court must allow the applicant time within which to file its heads of arguments since it could not have filed the heads earlier as the record was only availed to it on 2 September 2013. Prior to that, the applicant’s representative had nothing but the arbitral award.

The court after considering the submissions before it is of the view that the record is seriously wanting either the arbitrator must be ordered to reconstruct the record or the matter must be remitted for a fresh hearing.

I am of the view that the latter option will serve the justice of the case.

I have already highlighted that it was not proper for the arbitrator to rush through the hearing because he felt that it was more important to save on time and money. He ought to have allowed the parties an opportunity to present all their evidence and submissions during the hearing. To give the parties an opportunity to interrogate, cross-examine or comment on the evidence during the hearing. This would have helped him to assess the evidence placed before him. The manner in which the hearing was conducted was improper. It would serve no useful purpose to order that the arbitrator reconstructs the record when he has already failed to produce a proper record. It would just serve to delay the finalization of this matter.

In the circumstances, I will make the following order:

That the matter be and is hereby referred back to the arbitrator for a hearing de novo and to enable the arbitrator to record and keep a proper record of proceedings.

HOVE J

JUDGE – LABOUR COURT

Dube Manikai & Hwacha, appellant’s legal practitioners