ZESA Holdings (Private) Limited & 3 ORS V Zimbabwe Management Association Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/825/14
HELD AT HARARE ON 22nd SEPTEMBER, 2014
CASE NO. LC/H/544/13
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/825/14
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/825/14

HELD AT HARARE ON 22nd SEPTEMBER, 2014  CASE NO. LC/H/544/13

AND 19TH DECEMBER, 2014

In the matter between:-

ZESA HOLDINGS (PRIVATE) LIMITED			    1ST Appellant

ZESA ENTERPRISES (PRIVATE) LIMITED		    2ND Appellant

ZIMBABWE POWER COMPANY (PRIVATE) LIMITED	    3RD Appellant

ZIMBABWE ELECTRICITY TRANSMISSION AND

DISTRIBUTION COMPANY (PRIVATE) LIMITED	    4TH Appellant

And

ZIMBABWE MANAGEMENT ASSOCIATION

WORKERS UNION							    Respondent

Before the Honourable Justices 	G. Mhuri,

F.C. Maxwell, and

R.F. Manyangadze,

For Appellants: 	Mr. A.K. Maguchu (Legal Practitioner)

For Respondent: 	Mr. B. Magogo (Legal Practitioner)

MHURI J.:

This is an appeal against an arbitral award issued by Arbitrator A. Manase.

Both legal practitioners made the observation and were in agreement that the Arbitration was conducted in a very wanting manner.  The Court is also in agreement with that observation.  No minutes were written down at all as if the parties never made any submissions.  What we have on the record is the award only.  According to Respondent’s legal practitioner the award is too brief, inarticulate and gives an unsavoury task of defending.

On the face of it, it appears to be insufficient.

Arbitrators should be reminded that when they sit to hear matters they do so as a Court of record.  Everything must be recorded so as to make it easier for the Labour Court and subsequently the Supreme Court as their proceedings eventually are taken to these Courts on appeal.  It also makes it easier for the parties to present and argue their cases on appeal.  Moreover in terms of Article 31(2) of the Model Law arbitrators are enjoined to state the reasons upon which an award is based unless the parties have agreed otherwise.

What happened in casu leaves a lot to be desired and is not expected of a well experienced arbitrator and lawyer.

The issues for the arbitrator to determine were whether or not Zesa Holdings (Private) Limited committed an unfair labour practice by refusing to negotiate with Respondent on behalf of D3, D4 and D6 managers for the period January to December, 2012 and to determine the appropriate collective bargaining package for these grades.  After the matter was referred to compulsory arbitration, it is common cause that the following transpired:

The arbitrator directed Respondent to file its statement of claim and heads of argument.

Upon receipt of Respondent’s documents, Appellants were to file their opposing papers and thereafter

Respondent was to file its answering papers.

After the parties had complied with the Arbitrator’s directive, the matter was set down for hearing where both parties made oral submissions.

It was during the hearing that an undertaking was made by Appellant to furnish the Arbitrator with certain documents for consideration.

By a letter dated the 25th June, 2013 as undertaken, Appellant submitted to the Arbitrator the following:

letter dated 18 March, 2013 and annexures.

audited accounts for all Appellants for the year 2011.  The 2012 accounts were not yet out then.

Labour Court judgment in the case of CHAMBER OF MINES V AMWUZ LC/H/250/12.

Arbitration awards by Madhuku and Makings.

Administration Court decision in the case of CZI V ZERA AND ANOTHER COMP 4/11

High Court Judgment TELONE V CASWUZ HH74/2007.

Supreme Court Judgment TRIANGLE LTD V PHIRI SC 107/2004.

It is not clear from the record when the award was issued as it is not dated at all.

It is a well established principle that he who alleges bears the onus of proof.  Before the Arbitrator, the Respondent was claiming a bargaining package for managers in grades B3, B4 and B5 in respect of:

their basic salary

Cafeteria allowance

Medical aid

Vehicle benefit

Stand by allowance and overtime.

The onus to prove that the claims were warranted therefore was on the Respondent.  This was to be done through adducing evidence.

See:		TRIANGLE LIMITED V PHIRI SC 79/02

in which reliance on a legal practitioner’s submissions without hearing evidence to substantiate the submissions was held to be a misdirection.

In casu, by letter dated 26th April, 2013 addressed to the Respondent submitted the following,

A cutting from Masvingo Mirror (12-18/2013) Powertel Article.

ZEMA proposed basic scales.

ZESA Holdings (Private) Limited Finance Department Internal correspondence.

Administration Note No. 27 overtime and standby

ZESA Holdings (Private) Limited Salary Scale effective 1st January, 2012.

The Court agrees with Appellants that these were submissions only.  For them to qualify as evidence substantiating their claim, they required someone, for example a company official to speak to them either orally or through an affidavit.  This did not happen in casu.

The financial Accounts as is clear from the letter by Appellant dated 26th June, 2013 addressed to the Arbitrator, were not before the Arbitrator during the hearing.  In that regard, the analysis as captured in

Respondent’s heads of argument (paragraph 30-56) were not placed before the Arbitrator.

Even if the financial statements had been produced during the hearing, it was not for Appellants to substantiate Respondent’s claim.  The Auditors’ statements, equally were to be interpreted or spoken to by them and not by the legal practitioner from the bar (Heads of Argument paragraph 57-60).

As rightly submitted by Appellants’ legal practitioner,

“The need for evidence cannot be over-emphasised when employees seek to create new rights, they surely ought to have an evidential basis for their claim.  One cannot simply claim a better salary for mere sake of it.  The reasons for requiring the better salary have got to be stated and supported by evidence.  This is so even in the absence of a contest from the employer.”

In view of the fact that no evidence was adduced by Respondent to substantiate their claim, it is the Court’s considered view that, the Arbitrator ought to have dismissed the claim.

In the result therefore the appeal is allowed with costs.  The arbitral award is hereby set aside and substituted with the following –

“The claimants’ claim is dismissed for want of evidence.

…………………………………………									MHURI J.

…………………………………………

MAXWELL J.		I concur

…………………………………………

MANYANGADZE J.	I concur

Dube, Manikai and Hwacha–Appellant’s Legal Practitioners

Makuwaza and Associates–Respondent’s Legal Practitioners