Suncrest Chickens (Pvt) Ltd v Nicholas Murinyu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/705/2014
HARARE, 30 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/705/2014

HARARE, 30 OCTOBER 2013 AND			     CASE NO. LC/H/660/11

03 OCTOBER 2014 AND 24 OCTOBER 2014

In the matter between:-

SUNCREST CHICKENS (PVT) LTD		-		Appellant

And

NICHOLAS MURINYU				-		Respondent

Before Hon. L. Kudya and

Hon. L.M. Murasi

For Appellant		-	Mr. T. Tandi (Legal Practitioner)

For Respondent		-	Mr. W. Chivaura (Legal Practitioner)

MURASI, J:

Respondent was employed by Appellant.  Respondent’s contract was allegedly unprocedurally terminated and the matter was referred to arbitration.  The arbitrator found in Respondent’s favour by ordering reinstatement.  Appellant was however uncomfortable with reinstating Respondent and requested the arbitrator to proceed with quantification of damages in lieu of reinstatement.  The arbitrator proceeded to do this and Appellant is dissatisfied and has approached this Court on appeal.

Appellant’s grounds of appeal can be summarised as follows:

That the arbitrator failed to consider mitigatory factors in favour of Appellant in that the market was depressed and Appellant was suffering from perpetual operational losses.

That the Respondent was a managerial employee and therefore the NEC Code of Conduct was inapplicable to him.

That the arbitrator failed to establish or come up with a reasonable period within which Respondent was supposed to find alternative employment.

That the Respondent was dismissed during the Zimbabwe Dollar era and any payments due to him should be awarded in that currency.

The arbitrator erred in awarding the payment of a bonus in December 2009 when no employee was paid a bonus during the period in question.

The arbitrator erred in law in awarding payment of a Gratuity to Respondent who was a managerial employee and not entitled to that benefit.

At the close of the first oral submissions, the Court was of the view that the documents that were referred to in argument by both parties were not part of the record.  The Court invited the parties to submit these documents to enable the Court to make a determination on the issues raised in argument.  This the parties formally did on 3 October 2014.  Appellant produced the following documents:

Collective Bargaining Agreement for the Food and Allied Industries.

Arbitral award for the Food and Allied Industries.

National Code of Conduct, SI 15/2006.

Payslip in the name of Respondent showing that he was a managerial employee.

Respondent produced the following documents:

Collective Bargaining Agreement for the Food and Allied Industries SI 85 of 1998.

Letter dated 30 January 2006 addressed to Respondent appointing him as Supervisor.

A reading of the documents clearly shows a serious rift in factual issues which need evidence.  Firstly, Appellant’s CBA date – stamped, 2 March 2006 by the Ministry of Labour is different from the one submitted by the Respondent.  Secondly, the payslip submitted by Appellant is disowned by Respondent, the latter stating that he is not aware of such a payslip.  Respondent produced the letter appointing him to the post of Supervisor which letter was not before the arbitrator.  The Court has observed that these documents were not before the arbitrator.  The Court is therefore being requested to examine documents with no accompanying evidence.  They have not been subjected to scrutiny and cross-examination by opposing parties.  It would be improper for the Court to proceed to make any determination in the circumstances.  The Court is of the view that the matter should be remitted to the arbitrator so that issues surrounding the documentary evidence can be properly ventilated to enable the arbitrator to come up with a judicious decision.

In the result, the Court makes the following order:

The quantification award by Arbitrator C.T. Kadenga is hereby set aside.

The quantification proceedings are referred to the same Arbitrator for a hearing de novo and the Arbitrator should hear evidence from both parties relating to documents listed in this judgment and may receive in evidence any other relevant documents.

The quantification proceedings should be held within thirty (30) days from the date of this order.

There is no order as to costs.

………………………………………		………………………………………. I agree

MURASI J.					KUDYA J

KANTOR & IMMERMAN, Appellant’s legal practitioners

MAUNGA, MAANDA & ASSOCIATES, Respondent’s legal practitioners