Blessing Muromba v Cairns Foods Ltd.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/828/14
HARARE ON 26th NOVEMBER, 2014
CASE NO. LC/H/APP/908/14
AND 19 DECEMBER, 2014
JUDGMENT NO. LC/H/828/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/828/14

HARARE ON 26th NOVEMBER, 2014		            CASE NO. LC/H/APP/908/14

AND 19th DECEMBER, 2014

In the matter between

BLESSING MUROMBA       			–	Applicant

And

CAIRNS FOODS LTD.				–	Respondent

Before The Honourable P. Muzofa, J.

For Applicant    :	A. Chambati (Legal Practitioner)

For Respondent :	Mr T. Nyamasoka (Legal Practitioner)

MUZOFA, J.

This is an application for Interim Relief pending an appeal made in terms of Section 92E(3) of the Labour Act [Cap 28:01]  (the Act).

On the date of hearing of this matter the Applicant made an oral application to have the Court admit a supplementary affidavit by Applicant and an amendment to the draft order. Respondent opposed this application on the basis that the supplementary affidavit addressed issues that were not before the Court. The said issues were arising from proposed amended grounds of appeal which amendment had not been sought and granted by the Court. The Court granted this application and indicated that reasons will follow. The supplementary affidavit seeks to address the amendment on the draft order. It is my considered view that an applicant being the prosecutor of this matter should be given an opportunity to express exactly what he seeks the Court to do. This will inevitably lead to the proper ventilation of a case.

The order that the Applicant seeks as amended is couched as follows:-

The arbitral award by arbitrator Gabilo dated 11 November 2014 between the applicant and the respondent and anything else arising from it or emanating from it be and is hereby suspended pending the appeal filed under case number LC/H/1032/14.

The respondent be and is hereby ordered to pay the applicant her arrear salaries and benefits for the period 17th of December 2013 to 30th November 2014 pending the determination of her appeal under case number LC/H/1032/14.

The arbitral award by Honourable Gabilo was in the following terms;

That the suspension of claimant be lifted forthwith.

That the respondent institute proceedings in terms of the company Code of Conduct and resolve the matter within 14 days from the date of receipt of this award.

The Respondent opposed the application and raised a preliminary issue that the application had been overtaken by events. The basis of this submission being that both parties had given effect to the award. It was submitted that Applicant reported for duty on 17th November 2014 and thereafter was on paid leave. On 21st November 2014 a disciplinary hearing was conducted against Applicant giving effect to the second part of the arbitral award. In any event, it was submitted by the Respondent the Applicant’s second request for payment of salary arrears is a declaratory order and this Court has no jurisdiction to grant such an order. In response the Applicant argued that this is an application for Interim Relief it being two fold, for the Stay of Execution and an order for payment of arrear salaries.

The first issue that falls for determination is whether the arbitral award was given effect to and therefore this application is of no consequence. The second part of the arbitral award ordered the respondent to institute disciplinary proceedings within 14 days. Respondent submitted that the Applicant was reinstated albeit on paid leave and disciplinary proceedings were conducted. As of the date of hearing of this case the Applicant was waiting a ruling on the penalty. To my mind clearly there is nothing to suspend. The Applicant’s suspension has since been uplifted, that is why she was being paid. Respondent has complied with the arbitral award to conduct a hearing. Clearly the Applicant’s prayer to have the award suspended has been overtaken by events.  I agree with Respondent this part of the application should not be allowed to see the light of day. It seems the Applicant also conceded to this position.

The second issue relates to the first order by the Arbitrator. What the Applicant seeks this Court to do is to interpret that part. The Arbitrator ordered that the Applicant’s suspension be lifted forthwith. It is from this order that the Applicant requests this Court to make an order that Applicant be paid salary arrears from December 2013 to November 2014. According to the Applicant it is not in dispute that the Applicant is entitled to the salary arrears from the date of the unlawful suspension to the date of the award. The Court in exercising its jurisdiction in terms of Section 92 E (3) is clothed with the powers to ‘make such interim determination in the matter as the justice of the case requires’. The wording of the Section in my view requires the Court to make a determination pending the finalization of the case. In casu the issue of the payment of salary arrears was not addressed by the Arbitrator. This is evident even from Applicant’s supplementary affidavit paragraph 5 thereof where she states;

“Furthermore the suspension even it is to be found not to have been unlawful as from the 13th of December 2014 (sic) …………. This point was not disputed by both parties but the arbitrator failed to make a determination on the issue and therefore denied the applicant all his arrear salaries and benefits as from 13 December 2014 to date.”

That on its own in my view shows that the Arbitrator did not make a finding on the payment of salary arrears as would appear from this application before this Court. This Court cannot infer a payment where it is not specifically provided for.

In any event giving effect to the first part on the uplifting of the suspension, the order provides for the uplifting of the suspension forthwith, I do not seem to infer any retrospectivety in that. The term forthwith in the case of Standard Chartered Bank Zimbabwe Ltd v Matsika 1996 (1) ZLR 123 SC was attributed to be within a reasonable time. It means going forward and not retrospectively. Bearing in mind the said definition the arbitral award was issued on 10th November 2014 and by 21st November 2014 Applicant was on paid leave which means the suspension had been uplifted. There is no better compliance with the term “forthwith” than this. As stated before there is no retrospectivity that was intended. In addition according to the Applicant this is an issue that the Arbitrator failed to address. This Court then wonders why Applicant would request to be paid the salary arrears in the interim when no finding was made on the issue. The second part of this application as per the amended documents is improperly before the Court.

This application therefore falls on the preliminary issues raised by the Respondent. Partly the application has been overtaken by events and the other part is improperly before the Court.

Accordingly the following order is made;

The preliminary point succeeds.

The application for Interim Relief be and is hereby dismissed with costs.

Chambati Mataka & Makonese  Attorneys at Law – Applicant’s legal practitioners

Atherstone and Cook – Respondent’s legal practitioners