Barco Chemicals v Sophia Chirere

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HARARE, 23 SEPTEMBER
JUDGMENT NO
LC/H/96/25 CASE NO
2024 & 6
LC/H/697/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 SEPTEMBER 2024 & 6

MARCH 2025

In the matter between: -

BARCO CHEMICALS

SOPHIA CHIRERE

Before the Honourable Kudya J

JUDGMENT NO LC/H/96/25 CASE NO LC/H/697/24

APPLICANT

RESPONDENT

For the Applicant	 R. Kadani	 (Legal Practitioner) For the Respondent	T. Rukwanda	(Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the arbitrator who ruled that the respondent employee was not National Employment Council graded, was underpaid and was constructively dismissed by the appellant employer.

Brief facts of the matter are that the employer and employee got embroiled in a labour dispute following the employee’s resignation on allegations of constructive dismissal. The employer said that it had transferred the employee to Croco Motors to contain costs. After her resignation, the employee went for conciliation and finally to arbitration where the arbitrator ruled in her favour. The arbitral award did not go down well with the employer. This prompted the employer to appeal to the labour court in the appeal which is subject of this judgement.

The employer raised appeal grounds which can be summarised as follows: -

Arbitrator erred by not appreciating the fact that the MDS grade referred to in the contract of employment only referred to its internal remuneration policy and that did

not change the fact that the employee was NEC graded to the extent that the arbitrator

lacked jurisdiction to entertain her claim.

The arbitral decision of awarding USD 6772,23 as shortfalls for January 2022 to November 2022 to the employee was contrary to law as it offended the provision of SI 33/19.

Arbitrator grossly misdirected herself by finding that the employer’s refusal to accede to the employee’s remuneration demands and its offer to transfer her to a sister company constituted conduct which made continued employment intolerant for the employee.

Arbitrator erred by ordering that the employer pays the award within 30 days of the award thus offending Section 98 (14) and (15) of the Labour Act.

In the result the employer prayed that the appeal succeeds with costs and that the arbitral award of 20 June 2024 be vacated and substituted with an order dismissing the employee’s claim of underpayment of salaries and constructive dismissal as lacking in merit.

In response to the appeal, the employee maintained in limine that, ground 1 was improperly before the court as it sought to raise a jurisdiction issue which is a review issue not an appeal one.

On the merits plane, she maintained that: -

Arbitrator had correctly ruled that she was not National Employment Council graded as borne out by her employment contract which branded her as MSD graded.

Arbitrator correctly awarded her USD 6772,23. Provisions of SI 33/19 were not applicable to her claim where liability arose after the promulgation of SI 33/19.

Arbitrator correctly found that she had been constructively dismissed judging from the fact that the working conditions were made intolerable by unilaterally changing salary, withdrawing benefits like motor vehicle benefits and the intended transfer to Croco Motors after failure to resolve the remuneration issues.

The fact that the arbitrator ordered compliance with the arbitral within 30 days of her award does not mean that she by passed dictates of 98(14) and (15) labour Act. Registration is for enforcement purposes so before moving to enforcement a party has to be given a chance to comply with the award through a less costly avenue.

In the result the respondent prayed that the appeal be dismissed with costs on the high scale since in her view the appeal is an abuse of court process calculated to frustrate her and to delay satisfaction of her unassailable claim.

On the date of the hearing, the parties were advised that the court would rule both on the points in limine and the merits of the case at the same time. This judgement therefore addresses both the point in limine and the merits of the appeal.

Point in limine

Jurisdiction issues are patently review issue See Section 93 EE Labour Act. Chapter 28:01 Be that as it may, the very question of jurisdiction is also a point of law which can still be entertained in an appeal. See Sable Chemicals Easterbrooke SC18/10.

In the case at hand, it is clear that the jurisdiction question arose out of the factual context that before deciding on the respondent’s entitlement the arbitrator had to rule whether indeed the employee was National Employment Council graded or MDS graded. It is the conclusion of that issue that caused arbitrator to rule on the remainder of the rest of the issues in the employee’s matter.

On account of the fact that the employer and the employee held diametrically opposed positions on the grading question which arbitrator ruled on it ceases to be a review issue only but is the appeal issue which the employer is of the view that the labour court may treat differently. The point in limine being without substance it be and is hereby dismissed.

Having concluded on the point in limine what remains to be decided are the merits of the appeal. Each of the appeal grounds is discussed below:

Ground 1

A reading of the arbitral award setting out the factors which the arbitrator considered when she concluded that the employee was not National Employment Council graded shows that the employer itself called the employee MDS graded, her contract of employment said so too and she was remunerated as such.

The only question which the court has to answer is whether such a conclusion can be adjudged grossly unreasonable. See Hama v NRZ 1996(1) ZLR664. The employer argued that the MDS reference was only an internal remuneration arrangement yet that was clearly in stark contrast with a fellow employee’s contract which spelt out clearly his National Employment Council grading. There was therefore, nothing remiss by the arbitrator holding that the employer was MDS graded judging from what it had reduced in writing as the contract between the parties.

It is settled that the court should not contract for the parties no matter how onerous the contractual conditions are. See Faylan Investments Pvt Ltd v Trema and another HCH273/23. It is clear that the parties contracted on the MDS grade so arbitrator was correct to the rule that he would determine the employee’s claim as it fell out of what had to be determined at National Employment Council level.

To bolster the argument, the employee also indicated clearly that she was not subscriptions to the National Employment Council. Faced with all these facts, there is now way the court can conclude that the arbitrator erred on her conclusion on the grade. The first ground being without merit should fail.

Ground 2

The question of when a judgement date is said to arise has been settled by the case of Ingalulu Investments Pvt Ltd and another v NRZ and another SC42/22. It is clear from the facts of the matter at hand that the judgement debt arose when the arbitrator made her award. Reference to SI 33/19 from that debt was therefore misguided. The ground being without merit should fail.

Ground 3

Constructive dismissal is decided from all the facts surrounding a particular case. See Barclays Bank of Zimbabwe v Mapfanya and another SC 90/21. In the case it had the employee demonstrated to the arbitrator’s satisfaction that, had it not been for the transfer, reduction in salary and withdrawal of other contractual benefits, the employee would not have left her job. There is no other description which the arbitrator could use to describe the employer’s actions which led the employee to quit her job. There is nothing outrageous in the arbitral determination

is that regard. See Nyahondo v Hokonya and others 1997(2) ZLR457. The ground is without merit. It should therefore fail.

Ground 4

The employee stated to the court’s satisfaction that registration of the award was a last remedy that could only be used after attempts to satisfy the claim just after the award would have failed. The 30-day mark was no bar to the later registration of the award if the need arose. There was therefore no breach of section 98 (14) and (15) complained about. The ground should also fail for lack of merit.

Costs

Punitive costs are only reserved for cases of patent abuse of court process. See Mahembe v Matombo 2003(1) ZLR148.In the instant case the employer genuinely thought that it could persuade the labor court to upset the arbitrator’s findings. The fact that it did not manage to do so cannot be said to be an abuse of court process. It was a simple act of a party who was exercising its right of appeal. The high costs scale is therefore not warranted.

IT IS ORDERED THAT

Appeal lacking in merit in its entirety it be and is hereby dismissed with costs on the ordinary scale.

Atherstone and Cook	 Applicant’s Legal Practitioners Pundu and Company Legal Practitioners	Respondent’s Legal Practitioners