Carnaud Metal Box v Darlington Mubarwi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/12/2014
HARARE, 14 OCTOBER 2013
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO. LC/H/12/2014

HARARE, 14 OCTOBER 2013	           	               CASE NO. LC/H/309/13

AND 14 FEBRUARY 2014

In the matter between:-

CARNAUD METAL BOX 						   Appellant

And

DARLINGTON MUBARWI					   Respondent

Before Honourable Chidziva J

For Appellant		Mr T. Pasirayi

For Respondent		Mr T. Nyamakura (Legal Practitioner)

CHIDZIVA J.;

This is an appeal against an arbitral award handed down by Honourable Arbitrator R. Matsikidze on the 20th day of March 2013.  The award was couched as follows:

“1. The claimant compromised its rights to challenge the validity of the retrenchment process by accepting the package and therefore his claim falls away.

2. The Claimant’s claim for recalculation herein succeeds and the Respondent is and hereby ordered to recalculate the packages using the LTD factor and also award the cash in lieu of leave days.

3. In the event that parties fail to agree on quantification either party may apply for quantification with fourteen [14] days of this amount.

4. The Arbitration costs shall be shall be borne by both parties equally.

5. Each party shall bear its own costs.”

The Appellant’s grounds of appeal are that:

“The Arbitrator erred and misdirected himself on a point of law by ordering the Respondent to recalculate the package using the LTD factors in circumstances when these factors were not applicable at the time that the package was concluded and correctly implemented in terms of the determination by the Minister.  The decision of the Arbitrator was not within his jurisdiction as it effectively amounted to a review of the retrenchment package.”

The Appellant therefore prayed that the appeal should be upheld and that the arbitral award of 20th March 2013 be set aside.

The Respondent in response told the court that;

The LTD factors were always applicable at all material times.

The award was merely enforcing the decision of the Minister and did not in any way, amount to reviewing the decision.

The Respondent therefore applied for the dismissal of the appeal.

The issues to be decided are;

Whether the Arbitrator misdirected himself on a point of law by ordering the Respondent to recalculate the package using the LTD factors in circumstances when these factors were not applicable at the time that the package was concluded.

Whether the decision of the Arbitrator was not within his jurisdiction as, it effectively amounted to a review of the retrenchment package.

The Minister approved retrenchment on 25th of May 2009.  This is well after the issue of the LTD had started.  The Respondent is therefore entitled to these benefits as the issue arose whilst he was still employed.  This is also corroborated by CHEDA JA in Post and Telecommunication Corporation vs Zimbabwe Posts and Telecommunication Workers Union and Two others SC 107/20012 when he stated that;

“The voluntary retirees simply want the Appellant to pay them whatever was the difference between what they were paid and what they should have been paid.  This is because the increases were backdated to the time when they were still in service.  What it means is that those who remained in service were paid better salaries while those who left were paid less but for the same month, especially back-dated salaries.  I see no reason why they should not be paid that difference …”

From March 2009 to May 2009 the Respondent was still employed by the Appellant.  He is thus entitled to the correct salary, notice pay and correct benefits.  The LTD factor for this period should also be correctly calculated.

In view of the foregoing therefore it is ordered that

The appeal fails.

The arbitral award by Honourable Rodger Matsikidze dated 20 March 2013 be and is hereby upheld.

Each party shall bear its own costs.

Gill, Godlonton & Gerrans – Appellant’s Legal Practitioners

Guni & Guni – Respondent’s Legal Practitioners