Enterprise Dog Handler Unit v Tavonga Chivanga & 34 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/751/2016
HARARE, 7 JULY 2016 &
18 NOVEMBER 2016
CASE NO LC/H/748/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/751/2016

HARARE, 7 JULY 2016 &					     CASE NO LC/H/748/2015

18 NOVEMBER 2016

In the matter between

ENTERPRISE DOG HANDLER UNIT					APPELLANT

Versus

TAVONGA CHIVANGA & 34 OTHERS					RESPONDENTS

Before the Honourable Chivizhe J

For the Appellant	Mr T Tanyanyiwa (Legal Practitioner)

For the Respondents    Ms M Mukucha  (Trade Unionist)

CHIVIZHE J:

This is a judgement in respect of an appeal brought against an arbitral award handed down by the Honourable Mr C Dangarembizi dated 30th January, 2013.

The material background facts are as follows:

The respondents were employed by the appellant as security guards. After the termination of their contracts the respondents approached the Designated Agent alleging non-payment of overtime. Upon failure to conciliate the parties the Designated Agent referred the matter to compulsory arbitration. The term of reference for the arbitrator was to determine ‘whether or not there is non-payment of overtime?’

At arbitration the respondent claimed that they were working two hundred and fifty two hours per month instead of two hundred and eight hours according to the relevant Collective Bargaining Agreement. They thus accrued thirty six hours of overtime each month. The respondent submitted that by not paying them for overtime the appellant violated section 7 of the Collective Bargaining Agreement and section 6 (b) of the Labour Act. The respondent prayer was for an order compelling the appellant to pay the amount of $80 661-90 in unpaid overtime within thirty five days of the date of the award.

The appellant disputed the respondents’ claims. The appellant submitted that the respondents were initially employed under its Agricultural sector where they worked two hundred and ninety nine hours per month. The company had later been moved to fall under the Commercial Sector where the hours were 208 hours per month. The appellant further submission was that the parties had mutually agreed for the employees to work for a continuous 21 days then would be off duty for the remainder of the month. The appellant further submission was that the matter had in any event prescribed since the respondent had been transferred in 2007. The appellant prayed for dismissal of the respondents’ claims.

The arbitrator after considering submissions made by the parties made findings that the respondent did accrue overtime; that they were entitled to be paid for the overtime; that the purported agreement reached at Works Council was invalid by reason of it not having been approved by the NEC; and finally that the claims by the respondents had not prescribed as the unfair labour practice was continuing.

Dissatisfied with his award the appellant noted the present appeal. The grounds of appeal are highlighted as follows:

“Grounds of Appeal

Matter has prescribed.

The Honourable Arbitrator ordered in hearing a matter which had prescribed    in terms of section 94 of the Labour Act [Chapter 28:01].

The matter was brought before labour officer and then passed on to the Honourable Arbitrator after long after the two years provided for in the aforementioned Act had lapsed and hence the matter had prescribed and should not have been entertained.

The respondents are not entitled to payments for overtime

The Honourable Arbitrator misdirected himself in finding that the respondents were entitled to overtime based on the contractual agreement because he agreement did not include payment of overtime.

The respondents were transferred to a sector which had fewer hours. A meeting was held to this effect and an agreement was reached which did not address the issue of overtime and therefore the respondents are entitled to none.

Further, that the agreement was not registered with the NEC is of ill-consequence because the parties had a binding agreement. If the respondents were unhappy with its contents then they would have raised it then and not years later.”

Prescription

The appellant submits that the arbitrator erred in hearing a matter which had prescribed in terms of section 94 of the Labour Act [Chapter 28:01]. The matter having been referred to the labour officer and consequently to the arbitrator long after the two years enshrined in the Act had lapsed the labour officer and by extension the arbitrator should not have entertained the matter.

The respondents through their representative submit that the matter had in fact not prescribed when it was referred to the Designated Agent and consequently the arbitrator. The unfair labour practice was in other words continuing up to the time of referral of the complaint to the Designated Officer.

In terms of section 94 of the Labour Act [Chapter 28:01] no labour officer shall entertain any dispute or unfair labour practice unless it is referred to him or her or has otherwise come to his or her attention within two years from the date when the dispute or unfair labour practise arose. However if a dispute or unfair labour practice is ‘continuing’ at the time of referral to the labour officer the prescription period is irrelevant and the labour officer must entertain the dispute or unfair labour practice regardless of the length of time it has taken.

The arbitrator in addressing the issue of prescription came to the conclusion that the matter had not prescribed. His reasons were outlined as follows:

“The claimants argued that the issue was not prescribed since it was continuing. I accept the argument by the claimants for the dispute was continuing because documents of overtime claims were submitted up to the time of termination of their contracts.”

The arbitrator’s reasoning was clearly flawed. His finding was that the unfair labour practice was continuing up to the time of termination of contract which was in 2007. He did not address himself as to whether dispute was continuing at the time of referral to the Designated Agent in 2012. He deliberately did not pursue the issue as to when the dispute was referred to the Designated Agent. The appellant submits that the matter was referred in 2012. The respondent has not challenged this submission. The arbitrator also had to determine if the unfair labour practice was continuing even after the signing of the memorandum of agreement and even after termination of the employment contracts. What was his understanding of the term ‘continuing’ in the context of section 94 of the Act is clearly important.

The arbitrator clearly took a cursory approach to an issue that was critical to the disposal of the matter placed before him. If he believed the matter had not prescribed he had to give sound reasoning for the conclusion reached. I am in the circumstances unable to find that he correctly dealt with the preliminary point as taken.

The court would have been inclined to resolve the issue but as things stand the record has missing crucial information. In the circumstances it seems to me the most appropriate course would be a remittal to the arbitrator for a proper determination in the first place as to whether the matter was prescribed or not.

In the result the court makes the following order:

The appeal is allowed.

The arbitral award dated 30th January, 2013 is hereby set aside.

The matter is remitted to the arbitrator for a proper determination of the preliminary point taken by the appellant that the matter was prescribed and thereafter if necessary, the substantive issues raised by the parties.

The matter shall be determined within sixty days of the date of this order.

Manase & Manase, appellant’s legal practitioners