Freda Rebecca Mine v Jucha Mwanza & Fifteen Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/727/16
HELD AT HARARE 13 JANUARY 2016
CASE NO
JUDGMENT NO LC/H/727/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/727/16

HELD AT HARARE 13 JANUARY 2016				      CASE NO LC/H/780/2014

& 18 NOVEMBER 2016						         LC/H/842/2014

In the matter between:

FREDA REBECCA MINE					Appellant

And

JUCHA MWANZA & FIFTEEN OTHERS			Respondents

Before The Honourables Makamure, Hove, Chivizhe & Chidziva, JJJJ

For Appellant			Kwirira (Legal Practitioner)

For Respondents		A Maguchu (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the award that was handed down by honourable arbitrator L M Gabilo on 16 January 2014 and 27 August 2014.  There is also a cross appeal to it.

The award dated 16 January 2014 granted the respondent the application for quantification.  The quantification award of 27 August 2014 states as follows

“In view of the foregoing consideration it is my humble conclusion that a fair and equitable payment of arrears during the period 2009 to 2011 should not include the following items listed below

Bonus has not been included because it is not a contractual obligation and is payable at the discretion of management and also noted that the claimants were not at work during the period in question.

The rent, electricity and water had been disallowed because it is outside the jurisdiction of this court-

In light of the above conclusion I hereby order that the respondent pay

claimants allowances and benefits as shown in the schedule below

It is further ordered that the respondent pay the restitution in six instalments within the six (6) months period but no later than 28 February 2015 and interest at the prescribed rate currently at 5%.  This restitution is subject to statutory deductions.

The cost of arbitration shall be borne by respondent as ordered previously.”

The award amounted to $254 665.84.  This figure was comprised of cafeteria, medical aid, shift allowances and 5% interest.

The brief history of this matter is that

The respondents were employed by the appellant until their contracts were terminated in 2011 through disciplinary proceedings.

The respondents took up the matter of unfair labour practices by the appellant.  Honourable arbitrator Gabilo granted the respondents the specific benefits they had applied for.

Prior to the awards by Honourable Gabilo Justice Chidziva on 15 August 2011 under Case No. LC/MC/03/13 granted a judgment in favour of the respondents.

On 27 June and 25 October 2013 Justice Hove under Case No. LC/H/260/12 ordered quantification proceedings.

The appellant has therefore filed an appeal against the Honourable L M Gabilo’s

Award dated 16 January 2014 which deals with points in limine.  Appellant is also appealing against the main quantification award dated 27 August 2014.  The grounds of appeal are as follows

The arbitrator misdirected himself in failing to find that the award by L M Gabilo dated 2 March 2012 was based on the judgment by Honourable Chidziva dated 15 August 2011 Case No.  LC/MC/106/11.  The judgment by Honourable Chidziva was in turn rescinded by Justice Makamure on 17 April 2013 under Case No. LC/H/ORD/106/11.  The rescission of the judgment by Justice Makamure rendered the award by L M Gabilo dated 2 March 2012 brutun fulmen

The quantification proceedings were premised on an ineffective award and the court a quo erred in dismissing the point in limine.

The court a quo erred in concluding that the judgment by Justice Hove under Case No. LC/H/250/12 dated 27 June and 25 October 2013 legitimized the quantification proceedings.  While the judgment by Justice Hove related to the award by L M Gabilo dated 2 March 2012 the judgment made no reference to the judgment by Makamure which rescinded the Chidziva judgment which was the basis of the award by L M Gabilo dated 2 March 2012.  In that regard the court a quo  erred in failing to appreciate the totality of the legal issues before it and in the result misdirected itself in its failure to appreciate that the quantification proceedings were legally baseless as there was no clear court judgment in favour of the respondent which legitimized any quantification proceedings.

The arbitrator misdirected himself in awarding medical aid allowances to all respondents when there was no evidence whatsoever that any of the respondents had in fact sought any medical assistance.

Further there was no evidence that any of the respondents was a member of any Medical Aid Society.  To that extent, the arbitrator made a gross misdirection on facts as the premise upon which medical aid was paid was never a cash benefit but was only to be paid and to accrue to a medical aid society.

The arbitrator made a gross misdirection in awarding damages in lieu of shift allowance when there was no evidence to substantiate that any of the respondents were entitled to a shift allowance a preserve of employees who were on night duty.  None of the respondents were employees on such a duty and the award of such damages was gross misdirection.

The arbitrator erred grossly in his decision to hold the utility bills paid for the respondents by appellant in terms of the employment relationship could not be set off against any terminal benefits due to the respondent.

On these grounds the appellant prayed for the setting aside of the quantification

Proceedings.

In response the respondents submitted that

The appeal issues appear to be review issues and thus they are improperly before this court.

The arbitrator did not misdirect himself because the judgment by Honourable Makamure has nothing to do with the period for quantification period.  Respondents only quantified to the last date of employment. Therefore the judgment by Honourable Makamure has no effect to the quantification award dated 27 August 2014.  The judgment by Honourable Makamure is for the dismissal of the respondents not for the payment of allowance and benefits and the claim is totally different.

The quantification is for the period before the dismissal in that.

The judgment by Justice Makamure and Chidziva are for reinstatement and not for quantification of allowances and benefits which appellant had not been paying to  all respondents before unlawfully dismissing them.

The appellant is mixing issues as the shift allowance is different from the night shift allowance.  The arbitrator did not misdirect himself by ordering the shift allowance.

Appellant is responsible for the utility bills.  The arbitrator erred by not awarding food hampers.

The respondents on these grounds therefore prayed for the dismissal of the appeal

and prayed for the production bonus and the food hampers to be granted.

The respondents stated that it is this claim of benefits that went before honourable arbitrator Gabilo not the issue of the dismissal that was dealt with by Justice Chidziva and Justice Makamure.

It is common cause that

Justice Chidziva on 1 August 2011 delivered a judgment in favour of the respondents.

The judgment by Justice Chidziva was a default judgment

On 17 April 2013 Justice Makamure under Case No. LC/H/ORD/106/11 rescinded the judgment by Justice Chidziva.

On 2 March 2012 Honourable Gabilo reinstated the respondent and ordered appellant to pay respondents all arrears and allowances.

On 27 June and 25 October 2013 Justice Hove ordered quantification proceedings after setting aside dismissals and reinstating the respondents.

On 16 January 2014 honourable Gailo granted the application for quantification and allowances.

On 27 August 2014 quantified salary arrears for the period 2009 to 2011 bonuses and utility bills were excluded.

What is to be decided is the

The effect of the judgment by Justice Makamure on the award by honourable Gabilo.

Honourable Gabilo in his judgment dated 2 March 2012 stated that

“That on the basis of honourable Chidziva’s order the claimants are still legally employed by the respondent and must be treated as employees until such time a superior court upholds the dismissal verdict.”

It is clear from this statement that Honourable Gabilo’s judgment was based on Justice Chidziva’s judgment.  Thus after its rescission on 17 April 2013 by Justice Makamure it ceased to have any effect.  It also follows that all proceedings that followed this rescission became brutum fulmen.  The subsequent quantification proceedings based on this judgment were therefore a legal nullity.  This principle is supported by Lord Denning’s dicta in Macfoy v United Africa Company Ltd 1961 3 ALL ER 1169 at 11721 where it was stated that

“and every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there it will collapse.”

In view of the foregoing this court finds that the appeal has merit.

The cross appeal in this case was to the effect that Honourable Gabilo in the award failed to consider the issue of benefits.  Mr Maguchu submitted that the arbitrator failed to consider the following claims which were payable

Cafeteria			$197 600.86

Medical Aid			    30 360.00

Shift allowance		    14 567.13

Bonus				    27 604.38

Statutory deductions

Mr Kwirira who represented the respondent in the cross appeal stated that the

arbitrator  had made factual findings.  He further stated that factual findings can only be appealed against if they are unreasonable.  Furthermore the arbitrator found that the cross appeal should be struck off as it was not properly before the court.

This court has already found that all the proceedings that followed the rescission by Justice Makamure ceased to have effect.  The subsequent quantification proceedings were also a legal nullity.  Therefore due to the invalidity of the proceedings in the main appeal the cross appeal cannot stand.

I therefore order as follows

The main appeal be and is hereby allowed

The cross appeal falls away.

The arbitral award by Honourable Gabilo dated 16 January 2014 and 27 August 2014 be and are hereby set aside.

Each party to bear own costs.

………………………..

CHIDZIVA J

………………………			I agree

MAKAMURE J

………………………			I agree

HOVE J

………………………..			I agree

CHIVIZHE J

Magwaliba& Kwirira,  appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners