Spar Harare (Pvt) Ltd v Patrick Mapuranga & Moses Matsengarwodzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/698/16
HELD AT HARARE 7 OCTOBER 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/698/16

HELD AT HARARE 7 OCTOBER 2016			CASE NO LC/H/31A/16

& 4 NOVEMBER 2016

SPAR HARARE (PVT) LTD				Appellant

PATRICK MAPURANGA				1st Respondent

MOSES MATSENGARWODZI			2nd Respondent

Before The Honourable G Musariri, Judge

For Appellant		R G Zhuwarara, Attorney

For Respondent		T G Mukwindidza, Attorney

MUSARIRI J:

On 4 January 2016 at Mutare, Arbitrator N A Mutongoreni made an arbitration award.  He ordered appellant to pay respondents an amount of USD23 179.42 as outstanding terminal benefits.  Appellant then appealed to this court against the award.  Respondents opposed the appeal.  The grounds of appeal were two-fold as follows,

“1. The arbitrator erred at law in finding that he has jurisdiction to determine a dispute referred to him after the amendment of section 93 (5) of the Labour Act [Chapter 28:01]

2. The arbitrator erred at law by failing to stay the determination of the dispute pending a constitutional application challenging the retrospective effect of section 12 C (2) of the Labour Act as amended.”

Respondents countered in their response thus,

“1--- The arbitrator was correct at law in holding that he had jurisdiction to determine a dispute of right referred to him after the amendment of section 93 (5) of the Labour Act [Chapter 28:01].  This is because section 93 as amended did not repeal the powers of an arbitrator from determining disputes of right.  It merely gave a labour officer similar powers.  So the arbitrator had the requisite jurisdiction---“

The salient facts are captured by the award under the sub-title “Background.”  Respondents worked for appellant.  Appellant terminated their services on

31 July 2015.  They filed a complaint with a labour officer on 18 November 2015.  They alleged non-payment of full terminal benefits.  The officer tried conciliation, but the parties failed to settle.  The matter was then referred to the aforesaid arbitrator.

The powers of a labour officer are set out under section 93 of the Labour Act [Chapter 28:01] (hereafter called the Act).  The Act was recently amended by the Labour Amendment Act No 5/15.  The Amendment was promulgated on 26 August 2015.  It amended the powers of the labour officer.  Thus the officer who referred this matter to arbitration in November 2015 ought to have been guided by the Amendment.  The new section 93 (5) (c) of the Act required him to make a ruling in a dispute of right.  This case concerning terminal benefits was such a dispute of right.  Therefore the officer had to determine the matter rather than refer the matter to arbitration as he did.

Respondent sought to argue that despite the Amendment, a labour officer retained the discretion to refer a matter to arbitration.  He argued that the Act added new powers to a labour officer but did not take away the arbitrator’s powers to deal with such matters.  The argument overlooks the fact that an arbitrator can only be seized with these matters upon referral from a labour officer.  The Amendment clearly shows that only disputes of interest  are amenable to arbitration.

Disputes of right are now the realm of the labour officer.  The new provision uses the word “may” in relation to the exercise of his power by the officer.  The totality of the provision shows that this is one of those cases where “may” means shall.  The officer is given “options” which are guided by his assessment whether a dispute is one of right or interest.  It is not an option guided by the officer’s preference.  See the case of Masiyiwa v T M Supermarkets 1990 (1) ZLR 166 (SC) p 170 – 171 (EFG & A).

In view of my conclusion above it is unnecessary to deal with the 2nd ground of appeal.  The appeal has merit as the arbitrator lacked the requisite jurisdiction.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The award issued by arbitrator N A Mutongoreni dated 4 January 2016 is set aside; and

Each party shall bear its own costs.

G MUSARIRI

J D U G E