Econet Wireless (Private) Limited v Jonathan Muwanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/127/2014
HARARE, 25 FEBRUARY 2014 &
CASE NO LC/H/104/2014
14 MARCH 2014
JUDGMENT NO LC/H/127/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/127/2014

HARARE, 25 FEBRUARY 2014 &		CASE NO LC/H/104/2014

14 MARCH 2014

In the matter between:

ECONET WIRELESS (PRIVATE) LIMITED			APPLICANT

Versus

JONATHAN MUWANGA						RESPONDENT

Before The Honourable L Kudya  :  Judge

For the Applicant		T W Nyamakura (Legal Practitioner)

For the Respondent       K Musimwa (Legal Practitioner)

KUDYA J:

This is an urgent application for interim relief by the applicant in terms of section 92 C of the Labour Act [Cap 28:01] as read with rule 34 of the Labour Court Rules S I 59/06.

Facts of the matter are that following the respondent (“employee”)’s secondment by applicant (“employer”) respondent approached arbitration arguing that he had been unfairly treated as regards the secondment.

The arbitrator ruled that indeed the secondment was irregular as the respondent had not been consulted properly prior to the secondment. The arbitrator ruled that the facts of the case demonstrated that there was a need for the parties to go separate ways. In that regard he ordered mutual termination of the relationship between the parties. To that end he ordered that the applicant pay to the respondent US$568 400-00 as an exit package within twenty-one days of that order.

Aggrieved by the order the applicant appealed to this court against that award. The appeal is yet to be heard.

In the meanwhile three days after the award, the respondent approached the High Court with a view to registering the arbitral award. In turn the applicant made the instant application where it is seeking that the arbitral award be stayed pending the determination of the appeal which it has lodged with this court.

The respondent opposed the application both on the basis that it is not urgent and also that the application has no merit. It is this opposed application which is the subject of this judgment.

The applicant’s case is premised on the following grounds. Firstly it argues that the matter is urgent because if the relief it is seeking is granted way after registration of the award and possible execution it would became merely academic.

It also argues that the respondent proceeded to make a registration application way before the full period of compliance with the award had not run its course. That to an extent exhibited the urgency that the respondent wanted the matter to be dealt with. Consequently the applicant realised it also had to seek redress with the same speed failing which the relief sought would be rendered academic if realised out of time.

On the merits of the application the applicant maintains that it has good prospects on appeal and that the balance of convenience favours that stay be granted pending the conclusion of the appeal.

On the other hand the respondent is opposed to the grant of relief sought by the applicant. It maintains that this is not an urgent matter at all. In the respondent’s view the mere lodging of the registration application does not mean that the High Court will dispose of it there and then. Further to that aside the monetary component of the award, he maintains that the award ruled that the secondment was unlawful hence it needed to have at least that component of the judgment registered hence its haste to register before the efluxion of the whole stretch of the period for the award’s satisfaction.

On the merits of the application, the respondent maintains that the application has no merit and should be dismissed. In essence, the respondent maintains that, the arbitral award was made based on sound reasoning. To that extent it is highly unlikely that an appellate court would upset it. For this proposition he says that the award was based on submissions made by the parties on the papers and orally and is not likely to be unseated. He says the figures he claimed and was granted were on the papers before the arbitrator and the applicant did not controvert those.

Further to that the applicant did not consult the respondent prior to the secondment hence the arbitrator was right in holding that the secondment was irregular so the option of mutual termination was thus called for to end the relationship between the parties.

In essence the respondent’s argument is that the application for stay has no merit and should be dismissed with costs. For clarity of record, the court will dispose of the urgency issue and thereafter deal with the merits of the application for stay itself.

Urgency

Rule 21 which provides for the set down of matters in the Labour Court does not spell out specifically the form which urgent matters should take. What this means for the court is that the matter can be styled as any ordinary application with the exception that it would be headed urgent and that there would be need for consultation between the party seeking to have the matter set down on an urgent basis and the Registrar in consultation with the Senior President/Judge to have the matter set down as such. In essence the certificate of urgency which the respondent takes issue with in this case does not have a role to play in the set down of urgent matter in the Labour Court. Its absence is therefore not fatal to the application before the court.

Over and above this the history of the instant case where registration has been sought before the full stretch of the period of compliance has in the court’s view set the urgency tone to the matter. It would thus make a mockery of the system to decline hearing this application on an urgent basis yet the very fear of the registration and execution of the award which is feared has already been put on urgent mode. The court is satisfied that for the above reasons the case is indeed urgent and it is therefore properly before this court as such.

Merits

On the merits of the case, it is noteworthy that, when the lawyers for the parties presented oral argument it was apparent that the two were not singing from the same hymn book as regards which law to apply to the issues at stake.

Whilst the applicant maintained that all that it had to show were prospects on appeal and balance of convenience, the respondent’s counsel seemed to have been of a different view. In fact a reading of his submissions touched more on the requirements to be satisfied when one is applying for an interdict.

At one point the court even enquired of the respondent’s counsel whether he did not need to correct/clarify his submissions so that they touch more on the stay application which was before the court. He however maintained the stance that the legal position of interdicts which he articulated stood well for the case at hand and maintained that he was of the view that based on these submissions the application should fail.

The court concedes that, given the timelines provided for the set down it was not practical for the respondent to file with the court substantive heads. Being that as it was the court indulged counsel and allowed the matter to proceed without the benefit of the respondent’s heads of argument.

It is noteworthy that, the requirements for such an application as enunciated by the applicant were well placed. These are the prospects and the balance of convenience test. Even if the court were to borrow the tenets applicable in interdicts enunciated by the respondent still the matter would principally stand/fall on the above mentioned two grounds.

On prospects, the record is clear, in particular a reading of the arbitral award that the award was made outside the law. In the first place, the arbitrator ruled from the facts that the secondment was unlawful. If that were the position the next question is how should that have been remedied. Furtherto that, the arbitrator noted that constructive dismissal as a legal construct could not be satisfied by the facts of the case. Having made the above findings it is then surprising where the arbitrator then got the mandate to contract for the parties and order the mutual termination of the relationship.

This is skewed reasoning and without even going deeper into the merits the order would easily be upset by the appeal court on the above basis alone.

As correctly pointed out by the applicant if the secondment was irregular relief only lay in the annulment of same and not to the heights to which thearbitrator took the matter. It is clear that, whilst the respondent might have had a good case for the upsetting of the secondment the whole thing was botched up by the way the arbitrator handled the matter. To that extent there are apparent prospects of success on appeal.

On the issue of balance of convenience nothing has been demonstrated which shows that a stay of this order would adversely affect the respondent. If the appeal fails the respondent will still be at liberty to execute.

On remedies, it is clear from the record that the remedy in terms of this application is all that is available to the applicant hence its utilisation of the same.

In a nutshell the application is merited and should

succeed.

IT IS ORDERED THAT:

Application for interim relief being with merit it be and is hereby upheld with costs.

Mtetwa&Nyambirai, applicant’s legal practitioners

Musimwa& Associates, respondent’s legal practitioners