Stanley Chipani & 3 Others v Ruzawi School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/686/2016
HARARE, 23 MAY 2016 &
CASE NO LC/H/365/2015
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/686/2016

HARARE, 23 MAY 2016 &					         CASE NO LC/H/365/2015

4 NOVEMBER 2016

In the matter between

STANLEY CHIPANI & 3 OTHERS				APPELLANTS

Versus

RUZAWI SCHOOL							RESPONDENT

Before the Honourable Kudya J

For the Appellants	S N Mutindindi (Trade Unionist)

For the Respondent     P Chimwayange (Administrator)

KUDYA J:

This matter was set down as an appeal against the arbitrator’s decision where he ruled on the point in limine raised in the arbitral proceedings that the employees had pursued multiple legal proceedings hence the claim they had brought before the arbitrator could not be entertained by the arbitrator.

The appeal grounds were styled as such:

Arbitrator erred at law by not appreciating that an appeal to the Labour Court does not suspend the operation of the decision appealed against and there was no suspension order on the NEC decision.

Arbitrator erred at law by disregarding that the applicants were entitled at law to be paid what they are legally entitled to.

Arbitrator erred at law by not observing that the employer had approached him with dirty hands.

Arbitrator erred at law by not observing that a works council has no business to interfere with a valid collective bargaining agreement registered in terms of the law.

Arbitrator erred at law by not observing that the appellants are not parties to the matter before the Labour Court hence there was no multiplicity of proceedings which was complained about.

In response, the respondent employer maintained that:

Argument advanced by the appellants on the suspension effect of an arbitral award was misplaced since issue at stake was not suspension but multiplicity of proceedings.

Arbitrator found that matter to the NEC exemptions committee was with respect to the minimum wage and that gave rise to the underpayment claim which was placed before him. To that extent the two issues were inseparable as they relate to the same applicants so arbitrator could not entertain a dispute which is pending before a higher court, in this case the Labour Court and that would result in multiplicity of proceedings. Arbitrator therefore did not disregard the appellants’ claim in any way.

Appellants do not fully appreciate the dirty hands principle.

Appellants are confusing selves. Matter was dismissed due to breach of procedural guidelines and no competent court could preside over an irregularity.

Appellants seem not to be conversant with cases to which they are parties yet the cases in question bear their names.

In conclusion respondent remarked that it indeed owed the appellants back pay but its argument is whether they could disregard a works council agreement signed by rest of the workers in terms of the law. Further to that, the appellants are not allowed at law to engage in multiple proceedings as that is scorned on by section 124 of the Labour Act. The respondent therefore prayed that the appellants’ case be dismissed and that the issue of underpayment be held in obeyance pending the finalisation of the matter by the Labour Court.

The law is settled that appeals against arbitral awards are only on points of law. See section 98 (10) Labour Act and the case of Sable Chemicals v Easterbooke  SC 18-10 for the point of law fact debate.

A reading of the arbitral award which is the subject of this appeal is to the effect that the arbitrator did not go into the merits of the issues which the appellants had brought before her. All that she did was that she only ruled on the point in limine on multiplicity of proceedings which had been raised by the employer. Stemming from that ruling it is therefore clear that the Labour Court cannot attempt to address the merits of a case which merits were not argued on at arbitration. The law is clear that on appellate court cannot usurp the powers of a lower tribunal be entertaining issues which were not deliberated by the lower tribunal. See case of Chikanda v United Touring Company SC 7-99.

It is apparent on the appellants’ grounds of appeal that they have sought to deal with both the point in limine and the merits of the underpayment case. The court has however already stressed that on appeal the court is simply examining what was done and what was presented before the tribunal below it and decide on the correctness or otherwise of the same.

Each of the appeal grounds is addressed below:

Ground 1

The arbitral award is clear that it only dealt with the question of the multiplicity of proceedings only. The suspension argument was not before it and not even ruled on. Even if the court were to take the argument as a point of law which can be brought up at any stage in legal proceedings, the said argument does not find support in the facts of the matter at hand.

The record is clear that the exemption argument was indeed intertwined with the under payment one. To that extent the court can not envisage what kind of suspension order the appellants would argue that the respondent should have sought. This ground is without merit and it should fail.

Ground 2

Arbitrator made it clear that he did not rule on the merits which were meant to be argued before him, so it would be wrong for this court to hold that he erred in that respect. He did not decide on the entitlement issue so he cannot be said to have disregarded the law in that respect. This ground also lacking in merit should also fail.

Ground 3

The dirty hands argument is intricately linked with ground one above which has been ruled to be without merit. Besides the law is now settled that the Labour Court is a creature of statute hence cannot address common law concerns which are not expressed in the statute (See case of) Associated Newspapers Zimbabwe (Pvt) Ltd v Minister of State & Information 2004 (1) ZLR 538 (S). This ground also lacking in merit should also fail.

Ground 4

As repeatedly indicated above the arbitrator cannot be faulted for dealing with the matter as he did. What was apparent to him was that the merits which had to be entertained could not be so entertained since the same issue was pending before the Labour Court. The court therefore has no basis to rule that he acted as alleged by ground 4.

The appeal ground also lacking in merit should be dismissed.

Ground 5

This is the only ground which is in sync with what the arbitrator did. He observed that the subject matter to be presented before him was already a subject of litigation in the Labour Court.

There was nothing remiss in that finding since that is precisely what the law provides for. No cogent argument has been advanced by the appellants to convince the court that the arbitral ruling was ill founded. In the result the ground should also fail.

In the ultimate all the appeal grounds are without foundation and the appeal should thus fail in its entirety.

IT IS ORDERED THAT

The appeal being without merit in its entirety it be and is hereby dismissed.