Cement, Lime & Allied Workers Union v Fibre Cement Employees Association

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/281/2013
HELD IN HARARE, MARCH 25, 2013
CASE NO. LC/H/335/2012
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/281/2013

HELD IN HARARE, MARCH 25, 2013		CASE NO. LC/H/335/2012

In the Matter Between

CEMENT, LIME & ALLIED WORKERS UNION				APPELLANT

And

FIBRE CEMENT EMPLOYEES ASSOCIATION				RESPONDENT

Before The Honourable E. Makamure         : President

For The Appellant     		: Mr M. Sibanda (Union General Secretary)

For The Respondent  		: A. Demo (Legal Practitioner)

KUDYA L.,

This is an appeal against the decision of the arbitrator where he declined to compel the parties to the instant case to introduce housing allowance in their 2012 negotiations at N.E.C. level.  He however went on to advise the parties that in the then circumstances they had to leave the matter in the hands of the works council.

Facts of the case are that the appellant workers union was engaged on salary negotiations with the respondent employer within their course of discussions arose the issue of the introduction of a housing allowance to benefit the appellant’s members.  Whilst appellant felt that due to respondent’s performance it could afford this allowance, the respondent on the other hand maintained that it did not have that kind of capacity.  It also maintained that the often benefits which the appellant’s members were enjoying were sufficient and as the facts stand then it was impractical for the respondent to concede to the introduction of the housing allowance.  Having reached a statement on this issue at works council level, the parties referred the matter to a labour officer where conciliation fated to yield results ending up in a certificate of no settlement being issued.  After that certificate was issued the matter then found its way before the arbitrator.  At arbitration, the terms of reference were to determine whether or not the housing allowance should be introduced in the 2012 NEC wage negotiating and if so to state the quantum.  After hearing submissions for both parties the arbitrator ruled that he could not compel the parties to introduce the housing allowance in their negotiators and further advised them to let the matter rest in the works council hands.  It is this decision by the arbitrator which led to the instant appeal.

The grounds of appeal were set out as follows:

“1.  	Arbitrator did not apply his mind objectively to issues and facts before

him and resultantly grossly erred on a number of issues before him.

2.	Arbitrator erred by referring the housing allowance issue back to the

works council yet it was clear that parties had reached a deadlock at that level hence their elevator of the matter to the N.E.C.

3.	Arbitrator grossly erred by considering the issue of exemption which issue was not before him.

4.	Arbitrator erred by considering other allowances and benefits like lunch, transport etc which again were not before him.

5.	Arbitrator totally failed to address the issue of having challenges which were being faced by the appellant’s members.

6.	Arbitrator failed to deal with the issue of affordability in the light of the facts which were before him.”

In response to this appeal the respondent stated that:

Award was only appealable on points of law and not fact.

Housing allowance issue was a dispute of interest which could not be forced on the parties but could only be dealt with through negotiations.

The award stated that arbitrator applied his mind to issues and facts which were before him hence there was no basis for the appellant to argue that arbitrator lacked objectivity when he dealt with the matter.

Works Council was then appropriate forum for the referral of such disputes hence it had to deal with the issue of the housing allowance at that level.

N.E.C. for Fibre Cement is unique in that it is a single entity hence could not apply for exemption for payment of the requested allowance.

The parties could not look at housing allowance in isolation of the other allowances and benefits as they formed part of the respondent’s submissions at arbitration.

Arbitrator did not err at all in finding that the parties should consider the total package including benefits when engaging in the negotiations.

Respondent therefore prayed for the dismissal of the appellant’s appeal on the basis that it lacked merit.

As pointed out by the respondent the law is clear that arbitral awards are only appealable on points of law, see Section 98 (10) of the Labour Act.  However from ... cases like the case of Norman Matsuta and Another v Cargo Pvt Ltd SC 47-09 where there is a serious misdirection on the facts that can be reiterated to a part of law and thus appealable in that light.  In the instant case the appellant has averred gross misdirection on the facts on his first ground of appeal and that puts this appeal perfectly within what is envisaged by the Act and case  .... appeals against arbitral awards.  The only question to be ... is whether or not the record before the court can be said that the arbitrator grossly erred on the facts as suggested by the appellant warranting this court’s interference with his order.

It is also worth rating from a legal perspective that the respondent argue that the issue at state was a dispute of interest where arbitrator could not compel either party to act on.  Whilst it is correct that a dispute of interest is usually settled by negotiator it is pertinent to note that ... of Section 93 5(c) which indicate that dispute of right may be rightly arbitrated upon if it is referred to arbitrator with the consent of both parties.  In the instant case there has not been any averment that the matter found its way to arbitration without the blessings agreement of the parties.  To that extent it would then be ... For the respondent to then turn round and state that this was a dispute of interest where a compulsion order could not be made.  It is clear from the facts of the case at hand that the matter was properly before the arbitrator with the agreement of both parties, hence it was within the arbitrator’s powers to compel either party to act or a particular manner.

All the above having been stated at the outset, it is now necessary to deal with each ground of appeal in turn for completeness of record.

Ground One

Save to mention that this ground merely restates the position at law where the arbitrator’s award can be ... by the court and set aside etc this ground does not deserve much comment.  It has already been commented above that such is the correct legal position that where there is a gross misdirection on the facts that vitiates the order by the arbitrator.

Ground Two

As regards of this ground if one takes into account the fact that what occasioned the matter to be at arbitration was a deadlock at works council level then it is clear that no useful purpose could be served by such a referral.  Whilst it is true as stated by respondent that such issues ordinarily need to be negotiated at fora like the works council it is clear that what drove the matter to arbitration was the failure to reach an agreement at such a fora.  In that respect the advice proferred on the arbitral does not assist much in this case.  Being that as it is the question is also whether any prejudice flows from such a suggestion by the arbitrator.  It is clear that none flows there from hence such a suggestion does not add or detract from the main issue which caused the parties to present before the arbitrator.  To that extent setting that clause and or not would be inconsequential to the key issues in this matter.

Ground Three

The Court agrees with the appellant that it was not proper for him to deal with the issue of exemption as it was not before him.  The law is clear that where an adjudicator operates outside the confines of his terms of reference that invalidates his order see case of Chikanda v United Touring Company Limited SC/7/99.  It is however worth rating that a complete reading of the record shows that it is not the exemption which swayed the arbitrator in his decision but it is correct the practical difficulties that he noted to be dividing the respondent to wriggle out of the payment of the housing allowance.  It is clear that this ground has merit and it should be upheld.

Ground 4

To the contrary of the appellant’s submission the court is of the view that the arbitrator could not have concluded meaningfully whether housing allowance could be included or not without looking at the whole package of benefits of the appellant members.  The court is not satisfied that there was any misdirection in this respect.  In fact the arbitrator need to be commended for taking a ... to approach to the ... issue which could not be divorced from the rest of the appellant’s members’ entitlements.  It is the reasoning in relation to the ... of the benefits that thus occasioned his decision to be backed by evidence of the other benefits.  The court is therefore satisfied that this ground has no merit.  It should therefore fail.

Ground five

The court does not agree that the arbitrator failed to address the housing challenges faced by the appellants.  What the arbitrator ... did as borne out by the record is that he was satisfied that on the facts before him the respondent was not in a position to grant the requested allowance hence he could not order the same.  In the court’s view this does not in any way mean that he underrated the housing challenges.  It was in the court’s view a mere weighing of facts exercise which resulted in appellant party failing to get what it had requested for because its case was less compelling than that which was presented by the respondent.  This ground should also fail as it has no merits.

Ground 6

This ground is ... linked to ground 5 above and the same views in 5 equally apply to this ground.  The court is therefore not persuaded that there was an abuse of discretion by the arbitrator in the case at hand.  This ground should also equally fail.

In the ultimate it is clear from the record that there was no gross misdirection on the party of the arbitrator ... his decision.  What is however potently clear is that the wording of his order however left a lot to be desired.  A reading of the order shows that he was satisfied that no good case from the housing allowance had been made out and he could not order the respondent to introduce such.  It is only this area which the court is of the view that it needs to be corrected.  His suggestion about works council has no value addition as already stated above. For these reasons his decision should be set aside and substituted with the following order.

That the claimant at arbitration having failed to make out a good case for the introduction of the housing allowance in the respondent’s employees pay package, the application for introduction of such an allowance be and is hereby dismissed.  There would be no order as to costs.

Union General Secretary, Representatives for the Appellant.

Chihambakwe, Mutizwa & Partners Legal Practitioners, Representatives for the Respondent