Courteney Hotel (Pvt) Ltd v Jameson Chinyan'anya & 36 Others

### Preamble
IN THE LABOURN COURT OF ZIMBABWE
JUDGMENT
NO LC/H/111/16
HELD AT HARARE 10 FEBRUARY 2016
CASE NO
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IN THE LABOURN COURT OF ZIMBABWE			JUDGMENT NO LC/H/111/16

HELD AT HARARE 10 FEBRUARY 2016			CASE NO LC/H/175/15

& 4 MARCH 2016

In the matter between:

COURTENEY HOTEL (PVT) LTD				Appellant

And

JAMESON CHINYAN’ANYA & 36 OTHERS			Respondents

Before The Honourable P Muzofa, Judge

For Appellant			Ms R C Muchenje (Legal Practitioner)

with D Mazula

For Respondents		M Musokere (Organising Secretary)

MUZOFA, J:

The appellant appeals against the determination of an arbitrator which ordered it to pay salary arrears in the sum of $221 646.50 in 9 instalments of $24 627.39 per month.

All the respondents were employed by the appellant.  It is not in dispute that the respondents did not receive their salaries for sometime when the appellant experienced financial challenges.  At times they were underpaid.  The respondents filed a claim for the recovery of the money with a labour officer.  When conciliation efforts failed the matter was referred to arbitration.  The arbitrator made a finding set out in the first paragraph of this judgment.

The appellant was not satisfied by the outcome and has noted this appeal.  Five grounds of appeal were set out on the notice of appeal.  The grounds of appeal raise issues wherein the arbitrator fell into error in the computation of the salary arrears.  The appellant did not dispute liability what is in contention is the amount due.  In pursuit of that the appellant raised issue that the respondents did not provide services between 2013 and part of 2014, that part of the claim was res judicata, that some of the respondents were not entitled to payments awarded and that the award itself was outrageous.

For the respondent it was submitted that the amount due was computed at conciliation stage with the participation of the appellant.  When the matter was referred to arbitration, the appellant was in agreement with the amount, the only issue was that of capacity to pay.

Both parties’ submissions before the arbitrator were not filed of record.  The court only had a copy of the arbitration award and the schedule of the claims.  The arbitrator noted in his award that the appellant acknowledged that it owed the respondents the amount claimed appellant thereafter set out the reasons for non-payment.  Thereafter the appellant proposed to liquidate the arrears in 18 months.

These submissions were not challenged by the appellant before this court.  The court will therefore accept the submissions as a true reflection of appellant’s case before the arbitrator.

It would seem the appellant seeks to resile from the admissions made before the arbitrator.

Clearly there was no evidence before the arbitrator to support the grounds of appeal as set out by the appellant.  The arbitrator’s award cannot be impugned based on what was not placed before him.  The issues raised on appeal by appellant cannot be entertained or determined by this court since the arbitrator did not make a finding on them, neither were they raised before the tribunal see Magodora & Others v Care International Zimbabwe SC 14/04.

This appeal therefore falls on the two issues above.  That the appellant conceded before the arbitrator that it owed the respondents the amount claimed.  Secondly that the appeal seeks to rely on evidence that was not placed before the arbitrator.  It therefore becomes unnecessary to consider the grounds of appeal as set out by the appellant.

The following order is made.

The appeal be and is hereby dismissed.

The arbitral award is upheld in its entirety.

No order as to costs.

Nyamapfene Law Practice, appellant’s legal practitioners