Charles J Makari v Toll Free Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/237/16
HELD AT HARARE 14 JANUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/237/16

HELD AT HARARE 14 JANUARY 2016				CASE NO LC/H/608/15

& 13 MAY 2016

In the matter between:

CHARLES J MAKARI				Appellant

And

TOLL FREE ZIMBABWE			Respondent

Before The Honourable L Hove, Judge

For Appellant			T Chivale (Legal Practitioner)

For Respondent		G Sithole (Legal Practitioner)

HOVE, J:

The appellant was employed by the respondent.  He alleged that he had been unfairly dismissed from the respondent’s employ.

The dispute was referred for conciliation but the parties failed to agree.  The matter was then referred to an arbitrator.  The terms of reference were recorded in the first page of the arbitral award and they were;

whether or not claimant was unfairly dismissed or contract was lawfully terminated.

whether or not claimant is owed money in unpaid salaries and benefits; and

the appropriate remedy

The arbitrator heard the matter and ordered payment of certain arrear salaries

And terminal benefits which had been negotiated between the parties in their earlier attempts to settle their differences out of court.

The employee was aggrieved.  He stated that the arbitrator had departed from the agreed terms of reference which required him to initially deal with the issues of whether or not the appellant had been unfairly dismissed.  It was submitted that the arbitrator sought the easy way out and just ordered in terms of an aborted agreement between the parties as they negotiated on a without prejudice basis.

The employee further submitted that the arbitrator went out of his given mandate.  He did not address any of the issues that had been referred to him.  He went on a floric of his own and ended up making a contract for the parties.

In the case of Inter-Agric (Pvt) Ltd v Allan Mudavanhu & 12 Others SC 9/15 the court stated that:

“In addition, at law, the arbitrator was only competent to determine the dispute between such parties as had been referred to him by the labour officer.  Thus he was confined to his terms of reference.  He had no mandate beyond that which had been referred to him.”

Again in another case that the court has been referred to that of Ballantyne Butchery (Pvt) Ltd t/a Dan Meats v Edmore Chisvinga & Others SC 6/15 the court found that failure to adhere to the terms of reference constitutes a misdirection which is capable of being interfered with by a superior court or tribunal.

The respondent does not argue that the arbitrator had adhered to the terms of reference.  It was submitted in its behalf that;

“The issue in dispute involved alleged unfair dismissal and alleged non-payment of arrear salaries and benefits.  The arbitrator did not find that there was unfair dismissal but ordered for payment of certain arrear salaries and terminal benefits which had been negotiated by the parties in terms of document dated 7 April 2015.”

The appellant is infact admitting that the terms of reference were not adhered to but arbitrator endorsed an “agreement” by the parties which had been crafted during out of court settlement attempts.

Whether or not an arbitrator can rely on a document arising out of without prejudice negotiations and whether or not the negotiations were on a without prejudice basis are issues, that the parties submitted on during these proceedings but I am of the view that this matter can be decided on the basis of the first argument raised and that is that the arbitrator had to adhere to the terms of reference before him.  Abandoning the terms of reference as was the case in casu was indeed a misdirection which warrants interference by this court.  It is on that basis that the award must be set aside.

Having found thus it becomes unnecessary to decide on the other issue raised.

The respondent, in its notice of response, cross appealed.  That appeal is improperly before the court.  It does not comply with the rules of the court and must be struck off.

In the result;

The cross appeal is struck off.

The appeal is upheld with costs.

The arbitral award is set aside and the matter is referred to a different arbitrator for adjudication on the same terms of reference.

I Mambara & Partners, appellant’s legal practitioners

Mawire JJ & Associates, respondent’s legal practitioners