Geili Investments (Pvt) Ltd v T Antonio & 15 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/68/2016
HARARE, 7 JULY 2015 &
CASE NO LC/H/APP/52/2015
19 FEBRUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/68/2016

HARARE, 7 JULY 2015 &				     CASE NO LC/H/APP/52/2015

19 FEBRUARY 2016

In the matter between

GEILI INVESTMENTS (PVT) LTD					APPLICANT

And

T ANTONIO & 15 OTHERS						RESPONDENTS

Before the Honourable L F Kudya J

For the Applicant      N Chipisa  (H R Officer)

For the Respondent   A Muzvaba  (Legal Practitioner)

KUDYA J:

This matter was set down as an application for interim relief that is to have the arbitral award made in favour of the respondent employees suspended pending the appeal noted by the applicant employer. Judgment was reserved on the understanding that before the reserved date parties would file with the court further submissions on issues they felt needed further clarification. When such was not forthcoming the court proceeded as prayed for by the parties that judgment could be arrived at based on the papers filed of record.

The main contention in this matter is that the employer is of the view that it would suffer irreparable harm if the arbitral order is not stayed as the respondent employees may not be able to refund it in the event of its success on appeal.

The background to the matter is that the employees went to arbitration following a labour dispute between them and their employer. An order was given in the favour of the respondent employees which order was then quantified by the arbitrator.

The employer was unhappy about the quantified award. This drove it to appeal against that award to the Labour Court. It however realised that it could not be heard by the appeal court before it complied with the award or at least sought stay of the same. This is what prompted it to apply to this court to have the award stayed in terms of section 92 E of the Act. It is primarily that application which is addressed by this judgment. The test for such applications is clear. See case of Chibanda v King 1983 (1) ZLR 116.  The applicant has to demonstrate that he has merited case on appeal and that the balance of convenience favours the grant of such relief.

Turning to the facts of the case at hand the applicant contends that the arbitrator arrived at the figures which she awarded without being satisfied that the evidence led before her was sufficient to found such an award. In particular the applicant argued that it tendered documents at arbitration showing what it had paid the respondents which they had consequently signed for. It was therefore the applicants considered view that the arbitrator should not have concluded the matter without calling for expert evidence to prove or disprove the signatures which the respondents were said to be disowning.

In response to the application, the respondent maintained that the application was without merit. This is so because the appeal grounds do not demonstrate a point of law which the appeal court can be asked to deal with. It went on to quote the part of law test which is settled. See Muzuva v United Bottlers 1994 (1) ZLR 217.

The fact that it is settled law that appeals against arbitration awards shall lie to the Labour Court on points of law is without doubt. See section 98 (10) Labour Act. It is however pertinent to note that the point of law third rung speaks to a serious misdirection on the facts which can be elevated to a point of law. What this means is that once it is pleaded that there was a gross misdirection on the facts that suffices to raise a point of law. If this is put in the context of the arbitral award which the employer seeks to impeach it is patently clear that the argument that the arbitrator did not consider evidence led properly before him can indeed be elevated to a point of law. On the face of the grounds therefore the applicant has a reasonably arguable case based on the argument that the arbitrator did not take effort to delve deeper into submissions made before him, in particular the fact that there was a dispute as to the signatures showing what the respondent employees were paid etc.

Being that as it may the success of an application of this nature lies in the cumulative effect of the tests which set out what one has to satisfy to succeed. To that extent the second rung that of balance of convenience comes into play.

It is worth noting that the award involves +$10 000-00 cash to be paid to the respondents. The question is, if execution proceeds and the applicant eventually succeeds on appeal would the respondents be able to reimburse the money. A mathematical calculation of the amount amongst the sixteen employees means that each would have to pay back less than $1 000-00. In the court’s view that figure is not outrageously high that it cannot be said that the employer would lose out completely.

In any event the major point of disagreement is only the signatures which means that the employer is not effectively denying that he owes the employees something. This waters down the merits of the application and dissuades the court to grant the applicant the relief prayed for. The applicant has failed the twofold test and it is only just that its application be dismissed.

IT IS ORDERED THAT

The application for interim relief being without merit it be and is hereby dismissed. Each party to bear own costs.

Musoni & Masasire Law Chambers, respondent’s legal practitioners