Chaminuka Rural District Council v Zimbabwe Rural District Councils Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/62/2016
HARARE, 24 NOVEMBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/62/2016

HARARE, 24 NOVEMBER 2015		              CASE NO. LC/H/43/15

AND 19 FEBRUARY 2016

In the matter between:-

CHAMINUKA RURAL DISTRICT COUNCIL			Appellant

And

ZIMBABWE RURAL DISTRICT COUNCILS 			Respondent

WORKERS UNION

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr R.G. Wenyeve (Legal Practitioner)

For Respondent		Mr J.B. Chaka (Trade Unionist)

CHIDZIVA, J:

This is an appeal against the decision of Honourable arbitrator Kenneth M Nhongo that was handed down on 5 January 2015.  The award states as follows:

“that respondent is ordered to pay $58 377,32 to claimant being union dues and 15% interest.

That respondent is ordered to pay union dues on or before the 5th day of the ensuing more, and pay 15% interest for any amounts remitted after the 5th day of the ensuing month, and

That each party shall meet its own cost of suit.

I so award.”

The brief background of this matter is that the dispute that was brought before the arbitrator is non-remittance of respondent’s dues by the appellant as required by the Labour Act.  The issues that were brought before the Arbitrator are as follows:

Whether or not appellant should be ordered to pay $58 377,32 to respondent being union dues and 15% interest.

Whether/not appellant should be ordered to pay union dues on or before the 5th day of the ensuing month.

The Arbitrator to determine the most appropriate remedy.

The appellant is now appealing against this award on the following grounds:

The arbitrator erred at law by failing to take cognizance of the fact that party only of the respondent’s claim had prescribed specifically the amount claimed for the period commencing as at February 2009 to June 2012.

The arbitrator erred at law by failing to call parties for the purpose of proving the respondent’s claim.

The arbitrator erred at law in awarding the amount purportedly  due and owing to respondent by appellant be paid notwithstanding the fact that the interest clause used to compute the amount in toto is vague in that it is not clear as to whether interest was calculated per month or per annum.

The arbitrator erred at law by grossly misdirecting the facts in directing that the amount claimed be paid notwithstanding that no quantification was done and the document used in support of the respondent’s claim is not an authentic accounting document which vividly shows proper reconciliation of the appellant’s statement of account.  The arbitrator was obliged to get a proper account which considers accrual of dues and subsequent payments made the appellant but merely proceeded without such information.

The arbitrator erred by failing to take cognizance of the fact that the  respondent brought the alleged dispute to the attention of a Designated Agent before exhausting domestic remedies.

The arbitrator erred by failing to call parties to give further evidence as to whether or not all the employees listed in the computation document compiled by the respondent are still in the employ of the appellant.

The arbitrator erred at law by grossly misdirecting the facts in failing to take note of the fact that interest was claimed for a period stretching from 2009 – 2014 and yet part payments were made during the relevant period thus it appears as if interest was calculated as if no payment was made for the whole period in issue.

The arbitrator erred at law by failing to take note of the fact that the in disciplinary rule was applicable in this matter since the interest claimed exceeds the capital amount claimed.

The arbitrator erred at law by grossly misdirecting the facts in awarding that the amount claimed by the respondent be paid notwithstanding that the respondent did not tender proof of payment nor adduce evidence that only the amount claimed to have been paid by the appellant in the computation document was as a matter of fact paid. Thus the reconciliation of the account based on the document used in support of the respondent’s claim was not properly done.

The arbitrator erred at law by grossly misdirecting the facts in failing to call parties to give further evidence on how the amount arrived at from US $58 377,52 from US $8 860,00.

On these grounds the appellant prayed for the following:

That the decision of the tribunal be and is hereby set aside.

That the appellant shall not pay the amount claimed by the respondent together with interest thereon.

That the matter be remitted to the arbitral tribunal for further consideration.

The respondent in response raised a point in limine to the effect that there is no proper appeal before this court in that none of the ten (10) grounds of appeal raises any point of law.  The grounds of appeal raise factual issues.

The respondent further submitted that appellant throughout all proceedings never adduced any evidence to counter the grades as everything originated from its offices as shown by Annexture A which it forwarded to the respondent.  Ground No.8 was never determined before the arbitrator hence it cannot be heard by this court for the first time.

The respondent therefore prayed for the upholding of arbitral award and dismissal of the appeal.

This court is going to deal with the point in limine that has been raised by the respondent.  The court is going to consider whether there is a proper appeal before this court.

Section 98 (10) of the Labour Act [Chapter 28:01] states that:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this Section.”

In the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 the question of law was described as follows:

“First it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter.

Second it means a question as to what the law is.  Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

And third any question which is within the province of the judge instead of the jury is called a question of law.”

The Arbitrator made the following factual findings to the effect that;

The oral hearing on 19th December 2014 clarified how the respondent reached the figure of US $58 377,32 from US $8 860,00.  According to Annexture B “6” appellant has remitted a total amount of US $73 655,88 since 2009.  It was further submitted that it should have remitted a total amount of US $132 033,20 since 2009.

Appellant abused the system i.e. check-off system by failing to remit all of the monies it deducted from its employees on behalf of the respondent.  The appellant has been in arrears in its remittal of the union dues it collected since 2009 and that has accumulated a huge interest as a result.

The parties to the CBA agreed that a 15% interest shall be levied for any remittal of which dues after the 5th of the ensuing month.  It was not disputed by appellant and the Arbitrator confirmed the agreement as contained in the relevant CBA.

At the beginning of the hearing the appellant withdrew the 3rd, 5th and 8th ground of appeal.  However upon considering the rest of the grounds of appeal this court finds that the Arbitrator made a clear explanation of the factual findings that he made.

In the case of Heywood Investments (Pvt) Ltd t/a GDC Haulers vs Zakeo SC 32/13 Gowora JA held that;

“The Labour Court is obliged in terms of S 90A (4) of the Act, to ascertain facts in any proceedings before it and where necessary to call parties to give evidence.  It is further empowered to examine any witness appearing before it.  What the court is not empowered to do is to award damages in the absence of any evidence in support of such award.”

The arbitrator in this case called for documentary and oral evidence and thus he did not err in any manner.

McNally JA in the case of Leopard Rock Hotel Company (Pvt) Ltd vs Van Beek 2000 (1) ZLR 251 also stated that;

“The ruling by the Tribunal on damages is a ruling on fact and that is not appealable unless it can be categorised as wholly unreasonable.  This may (but must not) be the situation where the Tribunal has misdirected itself on the law as to the criteria to be taken into account in asserting damages.”

It is this court’s view that the findings by the Arbitrator are not unreasonable.

Korsah J in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 state that;

“.. an appeal court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence place before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion. ..”

As I have already indicated above the factual findings that the Arbitrator made are not unreasonable and thus this court cannot interfer with the finding.

Furthermore whilst the issue of prescription is a question of law it is not irrelevant in this case because failure to remit the union dues was continuous and this unfair labour practice had not prescribed when it was brought before the arbitrator.

To that end therefore this court finds that this matter is not properly before this court as it is based on factual findings.

Accordingly this court orders as follows;

The appeal be and is hereby dismissed with costs.

Warara and Associates, appellant’s legal practitioners