National Bakeries v Honourable Arbitrator G. Fereshi and Bonface Madzvatsvu

### Preamble

1

HH 452-13

HC6186/13

---------

NATIONAL BAKERIES

versus

HONOURABLE ARBITRATOR G.FERESHI

and

BONFACE MADZVATSVU

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE,12 November 2013 and 4 December 2013

Opposed matter

E. Samkange,for the applicant

V. Mazhetese, for the respondent

NDEWERE J: The application is for a declaratory order to declare that an arbitral award handed down by the arbitrator, the first respondent, on 9 November, 2012, is incompetent, void and therefore unenforceable.

The facts are that second respondent was dismissed by applicant on 19 July, 2011 after a disciplinary hearing. He was a security checker at applicant’s company until the date of dismissal. The record of the disciplinary hearing is part of the court record.

The second respondent appealed against dismissal and the matter was heard by first respondent on 2 November 2012 and an award reinstating the second respondent with full pay and benefits from date of dismissal was handed down on 9 November 2012. If reinstatement was no longer possible, respondent was

“Hereby ordered to pay complainant damages for loss of employment the quantum of which is to be agreed between the parties failure of which either party is to approach this arbitrator for quantification of damages”.

The award also said the respondent during arbitration, who is the employer had the right to institute fresh proceedings against the complainant, who is the employee.

On 10 December, 2012, the applicant noted an appeal to the Labour Court against the arbitral ward. The following were the grounds of appeal:

The learned arbitrator erred in holding that the respondent was unprocedurally dismissed. The respondent was given the notice of hearing on 9 July 2011 and the hearing was conducted on 15 July 2011. All the rules of procedure as required by law were observed.

The arbitrator erred and misdirected herself in proceeding to determine the labour dispute before her on technicalities. Overwhelming evidence was given and led to the effect that respondent had defrauded the applicant. In fact, the arbitrator found that the respondent should benefit from his own misconduct and this is erroneous at law.

The learned arbitrator erred and misdirected herself in proceeding to hold that the respondent be reinstated with full pay and benefits from 11 July, 2011 when the respondent was dismissed on 19 July, 2011. The alleged date of dismissal by the learned arbitrator is erroneous and in any event is not supported by evidence.

The learned arbitrator also erred at law in not finding for the appellant in circumstances where it was clear that dismissal was the appropriate remedy available as far as the respondent’s conduct was concerned.

Applicant’s prayer was for the setting aside of the award and its substitution with an order upholding the respondent’s dismissal.

The applicant did not raise the failure of the award to quantify damages as a ground of appeal.

On 29 July, 2013, the applicant applied to the High Court for a declaratory order to declare that the arbitral award handed down by the first respondent on 9 November, 2012 is incompetent, void and therefore unenforceable because it did not specify the quantum of damages.

The applicant’s ground for seeking the declarator is that the award is contrary to s 89(2) (c) (iii) of the Labour Act [Cap 28:01] in that it is incomplete because it does not specify an amount of damages to be paid to the second respondent as an alternative to his reinstatement or employment. The applicant’s prayer is that the award of 9 November, 2012 be declared null and void.

On 6 August, 2013, the second respondent filed a notice of opposition. The second respondent objected to the application being filed in the High Court for lack of jurisdiction, arguing that it is not possible for the High Court to determine the application without scrutinizing the merits of the award and thus interfering in labour disputes which are a preserve of the Labour Court in terms of the Labour Act.

The applicant filed heads of argument on 4 September 2013. On 5 September, 2013, the applicant’s heads of argument were served on the respondent’s legal practitioners.

In terms of r 238 (2) (a) , respondent should have filed heads of argument not more than 10 days after receiving the applicant’s heads of argument.

The respondent did not file heads of argument per above rule and in terms of r 238 (2) (b), the respondent was barred and the court or judge could deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll, unless if there was a successful application for upliftment of the bar. In terms of r 84, the application for upliftment of bar could be made orally on the date of the hearing.

On the initial date of the hearing, 7 November, 2013, the respondent made an oral application for upliftment of the bar and condonation for late filing of the heads of argument.

The second respondent’s lawyers said there was a mix up at the offices because the same parties have a matter in the Labour Court on the same facts so although the heads of argument were ready; support staff sent the same to the Labour Court matter. He said heads are now with the registrar and he had copies for the court and for the applicant.

Applicant’s lawyer opposed the application for condonation. The court granted the application after noting that r 84 allows barred parties to make oral applications on the date of the hearing. The court said since the heads of argument were ready and since it is trite that the same parties have a matter pending in the Labour Court, the court will give the applicant (second respondent) the benefit of the doubt, uplift the bar and grant the application for condonation and thus allow applicant to file its heads of argument. The matter was then postponed at the instance of the applicant in the main matter to allow it time to go through the heads of argument and also because the lawyer seized with the case at their law firm was unavailable. By consent, the matter was postponed to Tuesday, 12 November, 2013, for argument.

On 12 November, 2013, the respondent started by raising two points in limine. The first one was that the applicant was approaching the court with dirty hands because it had not yet complied with the arbitration award or applied for stay of its execution in terms of s 92 E (3) of the Labour Act [Cap 28:01]. The applicant conceded that the award had not been complied with and said the reason for non compliance was that because the award was incomplete. Counsel was asked why the applicant had not applied for stay of execution of the award in terms of s 92 E (3) ,citing the absence of quantification of the award as a reason to stay the award, rather than ignore the award when it has not been set aside by a court of law. The applicant had no satisfactory explanation for the applicant’s failure to apply for stay of execution in terms of s 92 E (3) of the Labour Act.

The court upholds the point in limine raised by the respondent. In terms of s 92 E (2) of the Labour Act an appeal against an arbitral award to the Labour Court “shall not have the effect of suspending the determination or decision appealed against” Section 92 E (3) then provides that pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires. This means that despite noting an appeal, in terms of s 92 E (2), the arbitral award remained binding on the applicant and had to be complied with. However, section 92 E (3) then offered some reprieve in that pending the determination of the appeal, the applicant was at liberty to approach the same Labour Court with an application for stay of execution. The applicant chose not to use s 92 E (3) to its advantage and decided to ignore that award, contrary to the provisions of s 92 E (3).

Despite its argument that the award is incomplete, the applicant proceeded to note an appeal against the award in the Labour Court. By the same token despite its strong views that the award is incomplete and contrary to s 89, the applicant was at liberty to apply to have its execution stayed pending determination of the appeal before the Labour Court. If the applicant had done that its non compliance with the award would have been lawful. As it is, the applicant has taken the law into its own hands and refused to comply with the award because it thinks the award is incomplete and therefore null and void. This cannot be condoned. As the CHIEF JUSTICE said in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity in the President’s Office and Ors 2004 (1) ZLR 538,

“This court is a court of law, and as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”

The applicant should either have complied with the award or applied for the stay of its execution in terms of s 92 (E)(3) of the Labour Act before coming to court with other matters. Only after it has either complied with the award or have the execution of the award lawfully stayed can it come back to court and raise other issues.

The court therefore agrees with the respondent that the applicant is not properly before the court for the reasons outlined above. Consequently the point in limine raised concerning the applicant’s dirty hands is upheld.

The second point in limine was that the High Court has no jurisdiction to consider this application because it is a labour matter and the Labour Court is the appropriate court for such matters.

In response, the applicant has argued that s 14 of the High Court Act gives the High Court jurisdiction to deal with applications of this nature and issue declaratory orders.

It is true that the High Court has jurisdiction to issue declaratory orders. However, as pointed out in the case of Edwin Mushoriwa v Zimbabwe Banking Corporation HH 23/2008 by GOWORA J, as she then was, it is not the mere labelling of an application as one for a declaratory order which makes that application a proper one in terms of s 14 of the High Court Act. The court has to look at the substance of the application and see whether it is a proper one for a declaratory order or a review which is dressed like an application for a declaratory order. On p 5 of her judgement, JUSTICE GOWORA said

“By arguing that his dismissal from employment was not effected in terms of the provisions of s 12, the applicant is inviting this court to view the manner of the dismissal vis-a-vis the provisions of the Act. In order then to determine, whether the dismissal was null and void, this court would have to have regard to the provisions of s 12 of the Act and come to a finding as to what the section requires of an employer before he can dismiss an employee. The provisions of the section have to be considered in the light of the actions or omissions on the part of the respondent in effecting the dismissal of the applicant.

Thus an exercise undertaken by this court to examine the manner in which the respondent effected the dismissal of the applicant is, in this case, no more than a review of that process.”

The principles enunciated by GOWORA J (as she then was) above apply to this case although the facts of the matter are different in that in the above case, the employee is the one who wanted the authority’s decision declared null and void while in the present case it is the employer who wants the award declared null and void. In the present case, the applicant is inviting this court to view the arbitrator’s award vis-a- vis the provisions of s 89 of the Labour Act [Cap28:01] with regard to quantification of damages. In order to determine whether the award is null and void, this court would have to consider the provisions of s 89 of the Labour Act and come to a finding of what the section requires of an arbitrator when he reinstates and alternatively award damages to an employee. The provisions of s89 have to be considered in the light of the actions or omissions of the arbitrator in reinstating the second respondent.

As GOWORA J said in the Edwin Mushoriwa case (supra), such an exercise by a judicial officer is a review.

“In this case it is pertinent to note that one cannot determine the matter without subjecting the conduct of the respondent to scrutiny in light of the provisions of s 12 of the Act. Such process by a judicial officer in the circumstance pertaining in this application, no matter what the applicant may choose to name it is a process of review. Thus a declaration of nullity by this court can only come about in this case after a process of review.” (the underlining is mine)

GOWORA J concluded the above matter by declining jurisdiction. The case of Mercy Masuku v Delta Beverages HC 210/12 is also a case in point. In that case the applicant was dismissed and she applied for a declaratory order from the High Court, to declare her dismissal null and void. On p 5 of his cyclostyled judgement, JUSTICE CHEDA said that it is not the heading “Declarator” which makes the application a declarator. In that case the judge ruled that the complaint was that the procedure adopted was irregular and therefore the applicant ought to have invoked the review procedure before the Labour Court. Even in the present case, the applicant could have invoked the review procedure in terms of s 89 (1) of the Labour Act and r 16 of the Labour Court Rules.

Consequently, since a decision on the declaratory order can only be arrived at after a process of reviewing the first respondent’s award and since the authority to review labour matters are exclusively for the Labour Court in terms of s 89 (1) and (6) of the Labour Act [Cap 28:01] the High Court has no jurisdiction to determine the applicant’s matter. The application is therefore not properly before the court.

Having ruled that the application is not properly before it, the court will not get into the merits of the application.

The application is therefore dismissed with costs.

Messrs ER Samkange, Venturas & Samukange, applicant’s legal practitioners

J. Mambara & Partners, 2nd respondent’s legal practitioners