Sibangilizwe DhloDhlo v Watershed College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/607/2013
HARARE, 1ST NOVEMBER, 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/607/2013

HARARE, 1ST NOVEMBER, 2013			        CASE NO. LC/ORD/H/32/2013

AND 08 NOVEMBER, 2013

In the matter between

SIBANGILIZWE DHLODHLO					-	Applicant

And

WATERSHED COLLEGE						-	Respondent

Before The Honourable B.T. Chivizhe: Judge

For The Applicant 		-	In Person

For The Respondent	-	Mr T. Tandi (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an application for an order.  The application was filed on the basis of Section 89(1)(a) and Section 93(7)(b)(ii) of the Labour Act.  The application was opposed.

The background facts to the matter are as follows:

The Applicant was employed by the Respondent as a Director of Agriculture.  His contract of employment was terminated.  A dispute ensued resulting in the Applicant lodging a complaint with the Labour Officer in March 2009.  Upon failure to conciliate the matter was referred to an Arbitrator in March 2009 who then issued an award in the following terms;

That the employee would be paid salary arrears from 1 March 2009 to June 2009.

That the employee would also be paid 3 months cash in lieu of notice, gratuity and any outstanding vacation leave days.

That the employee would also be paid damages in lieu of reinstatement.  Further that the parties were to negotiate the question of damages.  In the event of failure to agree the parties would refer the matter back to the Arbitrator.

The Respondent, according to the Applicant, then paid out part of the salary arrears (from February to June 2009) using an ‘A’ level teacher’s salary instead of Director of Agriculture salary.  The Respondent however did not pay the damages in lieu of reinstatement as well as cash in lieu of leave (three months) cash in lieu of notice (four months) gratuity, pension and NSSA contributions.  The Applicant again reported a complaint of an unfair labour practice to the Labour Officer in August 2009.  The Labour Officer declined to issue a certificate of no settlement on the basis that he had already issued another certificate which had resulted in the first arbitral award; the Applicant could still request the Arbitrator to issue a supplementary award quantifying the salary arrears as well as the damages in lieu of reinstatement.

The Applicant then in June 2010 attempted to register before the High Court the arbitral award sounding in $60 000 as damages in lieu of reinstatement (quantified).  The award had however been altered by the Applicant to include an additional $29 367 being the balance in salary arrears as well as cash in lieu of leave, cash in lieu of notice, gratuity pension and NSSA contributions that had been awarded as part of the first arbitral award.  This amount was based on Applicant’s self computation of his own loss.

An order was granted in default.  The part of order granting $29 367 was however rescinded by Gowora J in 2011 under ref HC 3839/10 on the basis that that part had been registered in error as that amount did not constitute part of the original award being registered.

The Applicant in this application seeks the quantification of the Part (a) and (b) of the arbitral award.

The application is opposed by the Respondent on four grounds namely;

That the court has no jurisdiction to quantify the damages as sought by the Applicant which damages were granted by the Arbitrator.

The matter is lis pendens as the Applicant has clearly filed a similar application before the High Court under ref HC 3839/10.

That the Applicant has not exhausted domestic remedies as he has failed to approach the Arbitrator to have the first arbitral award quantified.

That the Appellant has in any event accepted payment of his salary and benefits as quantified by Respondent.  He is therefore taken to have acquiesced by agreeing to the quantification.  Having being paid all his benefits and accepted he is also taken to have waived his rights to challenge his quantification by the Respondent.

The application for an order clearly cannot succeed.  Firstly it is very clear that the Applicant seeks to have the Labour Court quantify the claims due to him in terms of para (a) and (b) of the arbitral award of the 30th of June 2009.  This the Labour Court cannot do.

It is a settled position that an Arbitrator appointed under the Labour Act are duty bound to assess damages in lieu of reinstatement.  Any judgment determination or award by these officials that fails to do so is liable to be interfered with as a misdirection or as failing to comply with the Act.  An order that does not award specific amount in damages in lieu of reinstatement is incomplete and therefore not registrable in terms of Section 98(14) of The Act.  See Mandiringa & Ors vs National Service Security 2005(2) ZLR 32a (S).

It is clear in casu the Arbitrator having quantified part (c) of his award has failed to quantify part (a) and (b).  The Applicant submitted that the Arbitrator has refused to quantify that portion of the award.  No proof of this averment has been placed before this court.  It is difficult to accept that the Arbitrator would refuse to what is essentially his duty and obligation under the Labour Act.  The matter clearly has to be referred back to the Arbitrator for him to quantify part (a) and (b) of his award.

The second reason is that the Applicant has placed claims before the court to cover accrued leave, cash in lieu of notice, balance of salary arrears, pension, NSSA contributions.  The total claim is for US$29 765.  It is clear that there will be need for evidence to be adduced to prove each and every claim.  That evidence has to be led before the Arbitrator who granted the original award.  Any payments made to date by the Respondent would need obviously to be deducted from the total payable.  It is only then that Applicant will be able to register and execute that award.

The objection that the matter is lis pendens clearly cannot apply where the High Court struck down the computation by the Applicant in the amount of - $29 765.  There is clearly no similar application based on that claim before the High Court.

In the circumstances the application stands to be dismissed for lack of jurisdiction.  The court however intends to refer the matter to the Chief Registrar for the Arbitrator Mr Mapisaunga to be directed to quantify part (a) and (b) of his award handed down on 30 July 2009.  Such quantification should be done within 30 days of the date of this order.

It is so ordered.

Applicant In Person

Kantor & Immerman Legal Practitioners, Representing the Respondent.