ZAOGA v Kasikai Mashonganyika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/779/2016
HARARE, 17 NOVEMBER 2016
CASE NO LC/H/319/2016
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE        JUDGEMENT NO LC/H/779/2016

HARARE, 17 NOVEMBER 2016                                            CASE NO LC/H/319/2016

2 DECEMBER 2016

In the matter between:

ZAOGA                                                                			APPELLANT

and

KASIKAI MASHONGANYIKA                        			 RESPONDENT

Before the Honourable Chivizhe J

For the Appellant	T Marume (Legal Practitioner)

The Respondent in Person

CHIVIZHE J:

This is an appeal against an award handed down by the Arbitrator, Honourable N.K. Nhimba on the 13th of June, 2016.

Background facts

The respondent was employed by the appellant. He referred a complaint of underpayment of wages to the labour officer. The labour officer having failed to conciliate the matter referred it in terms of section 93(5) of the Labour Act [Chapter 28:01] for compulsory arbitration. The terms of reference were for the arbitrator to determine firstly, whether the respondent was being underpaid, secondly, whether, E Mhere a consultant had locus standi to represent the respondent in proceedings before the arbitrator and thirdly, to establish appropriate remedy.

Before the arbitrator the respondent submitted that on the basis of Article 24(4) of the Arbitration Act (Chapter 7:15) his representative had a right of representation as a Labour Consultant before the Arbitrator. He argued that section 12 of the Labour Act [Chapter 28:01] relied on by the appellant to suggest otherwise refers only to representation in the Labour Court and not to proceedings under the Arbitration Act [Chapter: 7:15]. In support of his proposition the respondent referred to decisions in the Labour Court, i.e Precious Chiguvaza v Solta Group of Companies LC/H/308/14, S Taruvinga & 8 Ors v ZAOGA LC/H/REV/120/14. The arbitrator was urged to dismiss the point in limine taken by the Appellant.

The appellant in counter submitted that the Labour Consultant did not have locus standi to represent the respondent in the arbitration tribunal. The appellant relied on the Labour Court decision in Bothwell Rutsvara v Lucullus (Pvt) Ltd LC/H/38/08) and Maxwell Mukaro and the Master of High Court HH 212-10

The Arbitrator after considering the evidence and submissions by the parties, found that representation before an arbitration tribunal set up under the Arbitration Act [Chapter 7:15] is addressed by the provisions in Article 24(4) of the same Act. Under that provision a party may be represented by any person of their choice. On that basis the Arbitrator found that the Labour Consultant had right of representation before him. He therefore dismissed the point in limine.

The Appellant was aggrieved by the determination and noted the present appeal.

The appeal turns on only one issue, as to whether the Arbitrator erred on a question of law when he found that a Labour Consultant has locus standi to represent a party in arbitration proceedings.

Before me the submission was made by the Appellant counsel that the Arbitrator erred in the conclusion reached. Counsel relied on the same arguments as placed before the Arbitrator. It was submitted that section 12 of the Labour Act [Chapter 28:01] outlines representation before the Labour Court and by extension to the Arbitrator. Representation is by a legal practitioner or an officer or employee of a registered trade union or employers’ organisation of which a party is a member. It was further submitted that section 98(9) of the Labour Act [Chapter 28:01] also provides that Arbitrators in sitting to determine matters have the same powers as Labour Court. As arbitrators have the same powers as the Labour Court, it logically follows that a Labour consultant being disqualified to appear before the Labour Court also has no right of representation before the Arbitrator. The Arbitrator therefore grossly erred in dismissing the preliminary point taken before him.

The Respondent’s submission in response was that the Arbitrator was correct in his findings that the Labour Consultant had on the basis of Article 24 (4) of the Arbitration Act [Chapter 7:15] a right of representation before him. The   appeal had therefore been noted purely to frustrate the Respondent and therefore ought to be dismissed.

EVALUATION

Having considered submissions by both parties it is my finding that the Arbitrator did not err in reaching the conclusion that the Labour Consultant had a right of representation before him. The reason is to be found in Article 24(4) of the Arbitration Act [Chapter 7:15] which reads as follows:

“At any hearing or any meeting of the arbitral tribunal of which notice is required to be    given under paragraph (2) of this article, or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any person of their choice.”

It is clear on the basis of provisions in section 24(4) of the Arbitration Act   [Chapter 7:15] that a party may be represented by any person of his choice in proceedings before the Arbitrator.

The Respondent has however sought to argue otherwise on the basis of section 92 and section 98(9) of the Labour Act [Chapter 28:01]. Section 92 provides for the right of representation before the Labour Court. Section 98 (a) refers to power of the court which has nothing to do with right of representation. The two provisions in my view are clearly not applicable to proceedings before the Arbitrator. This is because section 98 (2) of the Arbitration Act [Chapter 7:15] clearly provides as follows:

“The Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.”

The effect of the provision is that any matter that is not covered by section 98 of the Labour Act [Chapter 28:01] is regulated by the Arbitration Act. It follows that the aspect of conduct of hearings not having been provided for under the Labour Act is subject to the Arbitration Act [Chapter 7:15]. See also L Madhuku v Labour Law in Zimbabwe at page 365. Article 24 (4) referred to supra provides that a party may be represented by a person of his choice. The Arbitrator in my view correctly dismissed the point in limine. The appeal thus falls to be dismissed.

Order

In the result I make the following order:

The appeal is hereby dismissed with no order as to costs

Matsikidze & Mucheche, appellant’s legal practitioners