City of Harare v Clever Thomford Thom & 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/515/2016
HARARE, 22 JUNE 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/19/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/515/2016

HARARE, 22 JUNE 2016 &				           CASE NO LC/H/19/2016

9 SEPTEMBER 2016

In the matter between

CITY OF HARARE								APPELLANT

Versus

CLEVER THOMFORD THOM						RESPONDENT

& 5 OTHERS

Before the Honourable Hove J

For the Appellant	C Kwaramba  (Legal Practitioner)

For the Respondent     D C Ngwerume  (Legal Practitioner)

HOVE J:

This is an appeal against an arbitral award. The grounds for appeal are tabulated here below:

The honourable arbitrator misdirected himself at law by applying the labour (amendment) act number 5, 2015 to the matter, yet the Labour Amendment Act was not in operation when the cause of action arose.

The honourable arbitrator erred at law in his calculations of the back pay and damages in lieu of reinstatement which led him to arrive at a wrong figure which should be due to the respondents.

The honourable arbitrator’s award is so unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal in that:

The arbitrator applied the Labour (Amendment) Act, 2015 which is not applicable in the matter hence he arrived at a wrong figure which should be due to the respondent.

Ground number 2 is not raising any issue of law and is improperly before the court. I say so because it alleges that the arbitrator erred in calculating the back pay and damages.

Quantification of damages is a factual issue. The Labour Act [Chapter 28:01] provides that appeals from decisions of arbitrators to the Labour Court shall be on points of law and not facts. See in this regards the provisions of section 98 (10) of the Labour Act.

Ground of appeal number 2 is thus held to be contrary to the provisions of the said section 98 (10).

Ground of appeal number 1 and 3 are raising the same issue. They are questioning the applicability of the Labour Amendment Act number 5 of 2015 i.e. the Labour (Amendment) Act.

This issue appears not to have been raised and argued before the arbitrator. The award cannot be challenged on the basis of an issue that was never raised nor argued before the arbitrator.

It was held in Chikanda v United Touring Company SC 7-99 that if an issue was not raised before a prior hearing body the same cannot be faulted for not dealing with that issue. It cannot be a ground of appeal since it was never asked to deal with it in the first place.

This is the same issue that arises in casu. The arbitrator must first decide on whether or not the provisions of the Amendment Act are applicable.

In the premises the matter is remitted to the arbitrator who dealt with the matter to hear the parties on the issue of the applicability of the Amendment Act.

Mbidzi, Muchadehama & Makoni, appellant’s legal practitioners

Hamunakwadi, Nyandoro Nyambuya, respondent’s legal practitioners