Irjana Luxliner v C. Shongati & 9 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/853/2014
HARARE, 15 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/853/2014

HARARE, 15 SEPTEMBER 2014	    		     CASE NO. LC/H/678/13

AND 19 DECEMBER 2014

In the matter between:-

IRJANA LUXLINER					Appellant

And

C. SHONGATI & 9 OTHERS				Respondent

Before Honourable L. Kudya, Judge

For Appellant		A. Masango (Legal Practitioner)

For Respondent		T. Mutevere (Legal Practitioner)

KUDYA, J:

This is an appeal against an arbitral award which was made in favour of the respondent employees.  Facts of the matter are that respondents who are in the appellant’s employ went for a period of time without receiving their salaries and allowances as per the industry code of conduct.  They are all employed as long distant vehicle drivers by the appellant.  Their matter went for conciliation where a certificate of no settlement was issued after the parties failed to reach an agreement.

Consequently the matter went to arbitration where the arbitrator was called upon to decide whether or not appellant was engaged or an unfair labour practice by not paying the respondents their salaries and allowances.  At arbitration appellant maintained as it has done now in this appeal that it is willing but unable to pay due to financial constraints.  In the result, arbitrator ordered appellant to pay up by 20 September 2013.

Aggrieved by the award the appellant noted the appeal which is the subject matter of this judgment.  The grounds of appeal are that,

Arbitrator erred in awarding the allowances.

The time frame given by the arbitrator is unrealistic.

The respondents in turn challenged the appeal.  They maintained in particular that the appeal issues raised do not qualify as points of law upon which the Labour Court can be asked to decide the appeal.  On the merits they also argued that even if the grounds were to be said to qualify as appeal grounds in terms of the law, the facts which present in the instant case do not demonstrate that the appellant has a good appeal on the merits.

The law dealing with appeals from arbitration to the Labour Court is settled.  See Section 98 (10) Labour Act.  These shall only lie on a question of law.  Question of law or point of law is defined in the case of Muzuva v United Bottlers 1994 (1) ZLR 217 (S).

The primary question in the instant case is therefore whether it can be said that the appellant has placed before the court a point of law which is worth deciding upon. Appellant argues that indeed such a point of law is made.  The basis for that argument is that the housing allowances awarded by the arbitrator were not due to the respondents since they were in receipt of some allowance which could safely be explained to have catered for the housing allowance.

Appellant’s argument is therefore that there is an error of law to the extent that the arbitrator made the award without sufficient basis for doing so.  In the same breath the appellant argues that, by giving an unrealistic payment period in the face of evidence that appellant is underperforming such a decision was also bad at law and is thus appealable.  On the face of the arguments advanced that arbitrator grossly erred on the facts, such grounds would fall squarely within the ambit of rung three (3) of the test of what a point of law is.

To that extent the court rules that the appeal indeed raises points of law.  Having answered the first part of the quest the 2nd bit is whether the points raised are supported by the facts of the matter to warrant interference by this court.  A reading of the arbitral award demonstrates clearly that the conclusion made by the arbitrator were at the backdrop of the paucity of evidence from appellant to prove that indeed it did not owe the respondents the claimed housing allowance.  It is clear that the appellant had no defence to the claim and it still does not have same even at this appeal stage.  There is therefore no basis at law on which this court can find that the arbitrator reasoning was outrageous to warrant interference by this court.

It is apparent that the appellant is using the legal processes as a delaying tactic to discharge its indebtedness to the employees and the court cannot sanction that. The appeal is not merited at all and it should accordingly fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

MUSUNGA AND ASSOCIATES, Appellant’s legal practitioners

GOVERE LAW CHAMBERS, Respondents’ legal practitioners