Global Papers v Zivanai Mbasera

### Preamble
IN THE LABOUR OF COURT ZIMBABWE
JUDGMENT NO LC/H/143/16
HELD AT HARARE 16 FEBRUARY 2016
CASE NO
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IN THE LABOUR OF COURT ZIMBABWE			      JUDGMENT NO LC/H/143/16

HELD AT HARARE 16 FEBRUARY 2016				CASE NO LC/H/669/15

& 18 MARCH 2016

In the matter between:

GLOBAL PAPERS				Appellant

And

ZIVANAI MBASERA				Respondent

Before The Honourable E Muchawa, Judge

For Appellant			F Ruzive (Legal Practitioner)

For Respondent		B M Rutsvara (Trade Unionist)

with  Mr Muhambi (Trade Unionist)

+ the Respondent

MUCHAWA, J:

This is an appeal against an arbitral award which was handed down in default of the appellant.

The arbitrator observed in his award that the respondent did not attend the hearing in spite of having been duly notified to do so and that no reasons for non attendance were communicated.

The respondent, who had been employed by the appellant as a general hand, had been dismissed on 21 May 2013 on allegations of using abusive language and absenteeism.  Upon appeal to the Local Joint Committee, the respondent had been reinstated without loss of salary and benefits.  Aggrieved, the appellant lodged an appeal with the Negotiating Committee which upheld the decision of the Local Joint Committee.

When the respondent sought to enforce the order of reinstatement, the appellant refused to comply leading to the lodging of a complaint with the National Employment Council for the Commercial Sectors.  Conciliation efforts were unsuccessful leading to a referral to arbitration was alleged non payment of wages and benefits following reinstatement by the Negotiation Committee.

The arbitrator proceeded to award the sum of $8 949.00 to the respondent being arrear salaries, damages in lieu of reinstatement, housing allowance and leave pay.

The grounds of appeal before me are;

The arbitrator erred in fact in finding that appellant had been duly notified of the hearing when there was no evidence of such.  Consequently, the arbitrator erred at law in finding that appellant had failed, without reasonable cause, to attend the hearing.

The arbitrator erred in law when he found that respondent was owed 15 months’ salary in spite of the fact that reinstating respondent meant reinstating him into his four months remaining of his six months fixed term contract that he was serving.

The arbitrator erred when  he found that respondent was entitled to leave pay to the tune of US369.00 contrary to the provisions of section 12 (4) (c) of the Labour Act [Chapter 28:01].

The appeal is opposed.  At the hearing, appellant’s legal practitioners appeared

without having filed heads of argument which were some four and half months out of time.  I dismissed applications for condonation and postponement as no good cause was shown for the non compliance with the rules.  The bar operating against the appellant remained extant in terms of Rule 19 (3) (b) of the labour Court Rules, Statutory Instrument 59 of 2006.

I proceeded to hear the respondent’s submissions only and reserved my judgment.  This it is.

In ground 1 of appeal, the appellant concedes that the arbitral award is a default judgment.  I wish to dispose of this matter on this point alone.

In the case of Redstar Wholesalers v Livingstone Mutomba SC 142/2004 it was held that even where a court proceeds to hear the merits of a case, if the other party is in default, then it is still a default judgment.

The recourse of the appellant is therefore not to come before the Labour Court and allege misdirections on the part of the arbitrator, as he does in grounds of appeal 2 to 4, yet the arbitration was never favour with any submissions from the appellant.  In the case of Chikanda v UTC SC 7/99 … was held that if the argument was not raised before the tribunal, the tribunal cannot be faulted for not dealing with it.  It cannot be a ground of appeal from the tribunal that it did not deal with a matter it was not asked to deal.

It is unacceptable that the appellant is attempting to turn this court into a court of first instance, instead of an appeal court as provided by the law.

Appellant’s recourse is an application for rescission of judgment in the tribunal where the award was made in its absence.

Consequently this appeal is struck off the roll as it is improperly before me.

Nyawo Ruzive Attorneys appellant’s legal practitioners