Agrifoods (Pvt) LTD V Elisha Rubeni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/95/2016
HARARE, 10 FEBRUARY 2016 &
CASE NO LC/H/821/2012
4 MARCH 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/95/2016

HARARE, 10 FEBRUARY 2016 &			         CASE NO LC/H/821/2012

4 MARCH 2016

In the matter between

AGRIFOODS (PVT) LTD						APPELLANT

Versus

ELISHA RUBENI							RESPONDENT

Before the Honourable P Muzofa J

For the Appellant    C Malaba (Legal Practitioner)

The Respondent in Person

MUZOFA J:

The parties are embroiled in a labour dispute. The respondent is the appellant’s employee.

The undisputed facts are that the respondent was a Salaries and Administration manager Grade C5. In 2009 the respondent was verbally requested to take additional duties and responsibilities of the Human Resource Manager who had left employment. The respondent was paid an acting allowance in accordance with the Company’s Policy.

A dispute ensued in that, the respondent thereafter worked in that capacity for more than six months. The respondent’s claim was that he was supposed to have been appointed a substantive Human Resource Manager in terms of the appellant’s Group Human Resources Policy. The respondent referred the matter to a labour officer eventually the matter went for arbitration.

The appeal is against the determination of the arbitrator.

The appellant set out seven grounds of appeal which I will address in turn.

The first ground of appeal raise the issue that the arbitrator erred when he made a determination outside his terms of reference. It was submitted that the arbitrator’s terms of reference were clear they did not include the question on the appointment of the respondent to the post of Human Resources Manager.

It is the practice of arbitrators to set out their terms of reference to guide them on what issues to determine. The terms of reference are derived from the conciliation authority on Form L R4, reference to arbitration. The parties agree on the terms of reference in line with section 98 (4) of the Labour Act [Chapter 28:01] (“the Act”).

In casu the arbitrator set out the issues as captured in the reference to arbitration. These were:

Whether or not the respondent committed an unfair labour practice by not paying the applicant acting allowance.

Whether or not the respondent committed an unfair labour practice by discriminating the applicant on pay increases.

Whether or not it is an unfair labour practice to pay lower graded employees more than those in higher grades.

What is the appropriate remedy?

The three issues referred to the arbitrator did not include the question as to whether the respondent must have been confirmed as the substantive Human Resources Manager of the appellant.

Page 2 of the arbitration award shows a summary of evidence. The first issue wherein submissions were made related to the appointment of the respondent to the said post. If indeed this was an important issue the respondent should have included it in the terms of reference. Section 98 (4) of the Act provides:

“In ordering a dispute to be referred to compulsory arbitration, the Labour Court or labour officer, as the case maybe, shall determine the arbitrator’s terms of reference after consultation with the parties to the dispute.”

From the wording of that section the terms of reference are a function of the parties, what the parties to the dispute desire to be resolved.

I agree with the appellant the arbitrator based his decision on an issue which was not referred to him to determine. The issues for determination were on an acting allowance, pay increments and discrepancies in salaries. There was nothing on the question whether the respondent was supposed to be appointed a substantive Human Resources manager. Clearly the arbitrator fell into error.

The determination on the first ground of appeal has the effect of disposing of the matter. I say this because the other six grounds of appeal are grounded on the finding in respect of the appointment.

It is unfortunate that the arbitrator did not make any determination in respect of the terms of reference. There was no determination in relation to what was referred to the arbitrator. In the absence of findings on those issues this court cannot even consider them.

From the foregoing, I therefore make the following order:

The appeal be and is hereby dismissed.

The arbitral award is set aside in its entirety and substituted by the following:

“The respondent’s claim be and is hereby dismissed.”

Kantor & Immerman, appellant’s legal practitioners