Farai Karikoga v UBM P & L (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/444/2016
HARARE, 7 JUNE 2016 &
22 JULY 2016
CASE NO LC/H/179/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/444/2016

HARARE, 7 JUNE 2016 &					    CASE NO LC/H/179/2015

22 JULY 2016

In the matter between

FARAI KARIKOGA							APPELLANT

Versus

UBM P & L (PVT) LTD							RESPONDENT

Before the Honourable Maxwell J

For the Appellant	T Marume (Legal Practitioner)

For the Respondent	Mr Ochieng (Legal Practitioner)

MAXWELL J:

This is an appeal against a decision of an arbitrator declining jurisdiction in a matter before him on the basis that the issue brought before him was subject to proceedings before this court.

The appellant was employed by the respondent as a Regional Manager. Following allegations of misconduct the appellant was called for a disciplinary hearing. The appellant refused to attend the hearing on the basis that his representative, one Mr Chingoka, was not available. The hearing proceeded and he was found guilty and was dismissed in absentia. An internal appeal was not successful. The appellant subsequently referred the matter to a labour officer for conciliation. A certificate of no settlement was issued and the matter was referred to compulsory arbitration.

The respondent applied to this court for a review of the decision to refer the matter to compulsory arbitration. When the parties appeared before the arbitrator the respondent raised an objection that the matter was lis pendens in this court therefore the arbitrator should decline jurisdiction. The arbitrator upheld the preliminary objection and made reference to section 124 (1) of the Labour Act [Chapter 28:01]. The appellant was aggrieved and appealed to this court. The notice of appeal reveals that the main contention is that the arbitrator was wrong to deny jurisdiction on the basis that the filing of an application for review of proceedings automatically stayed the arbitration proceedings in the absence of an order of court staying the proceedings. The appellant also contends that the arbitrator’s reference to section 124 (1) of the Labour Act [Chapter 28:01] was an error as the said section was not applicable in the circumstances.

In response the respondent stated that as the arbitral tribunal is lower to this court, it had to defer to the court otherwise parties would be faced with an award that could very well be in direct conflict with the court’s ruling. The respondent also stated that it did not submit to the pre-arbitration proceedings and the matter was not a matter subject to compulsory arbitration. The respondent further stated that the arbitrator’s decision was correct.

By the time the matter was heard the review proceedings before this court had been disposed of. The application for review was dismissed. The issue for this court to determine is the appropriate relief in the circumstances. The appellant’s prayer had been that the arbitral award be set aside coupled with an order remitting the matter before a different arbitrator to be appointed by the Ministry of Labour to deal with the matter on the merits. The respondent’s position was that there is no reason for the matter to be referred back to an arbitrator as the arbitral tribunal has already made a determination as to its jurisdiction. Counsel prayed for the merits of the matter to be dealt with by this court.

Counsel for the respondent was not able to point out to this court any law that gives this court the power to proceed as he proposed. The reason he gave was an expediency. This court is a creature of statute. In dealing with appeals from arbitral awards, section 98 (10) says the appeal must be on a question of law. There is no basis given for hearing a matter as a court of first instance in circumstances where the merits of the matter can properly be dealt with through arbitration proceedings. I therefore decline the request for the merits of the matter to be dealt with by this court as a court of first instance.

Accordingly the following order is appropriate:

The appeal be and is hereby upheld.

The matter be and is hereby remitted for hearing before a different arbitrator.

The respondent shall pay costs of suit.

Matsikidze & Mucheche, appellant’s legal practitioners

Coghlan, Welsh & Guest, respondent’ legal practitioners