Jocelyn Maliwa v National Foods Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/124/13
HELD AT HARARE 2ND APRIL 2013
CASE NO
JUDGMENT NO LC/H/124/13
---------




IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/124/13

HELD AT HARARE 2ND APRIL 2013		     CASE NO LC/REV/H/21/12

JOCELYN MALIWA					Applicant

NATIONAL FOODS LTD				1st Respondent

MALINI MPANGO N.O.				2nd Respondent

Before The Honourable G Musariri, President

For Applicant		Mr R Masomera, Unionist

For 1st Respondent	Mr A.K. Maguchu, Attorney

MUSARIRI, G:

Applicant applied for the review of arbitration proceedings conducted by 2nd Respondent.  1st Respondent opposed the application. Applicant’s case was based on grounds of procedural irregularities and irrationality of the decision made.

Irregularities

2nd Respondent is/was an Arbitrator.  In that capacity he heard the matter involving Applicant and 1st Respondent.  The matter had been referred  to

him in terms of a Reference To Arbitration (Form LR 4) date-stamped

29th September 2011.  He set the matter for hearing on 25th October 2011.  Applicant turned up for the hearing.  1st Respondent defaulted.  Applicant

sought default judgment.  2nd Respondent declined.  He required written clarification of the claim.  He also directed that the clarifications be served upon 1st Respondent.  Applicant complied.  In due course, after several

requests for postponement, 1st  Respondent filed a response.  At the end of the day, 2nd Respondent made an arbitration award dated 29th February 2012.  Applicant’s gripe was basically that 2nd Respondent should have granted him default judgment when he applied for it.

Arbitrators are bound by the Model Law in the Schedule to the Arbitration Act Chapter 7:15.  Article 25 of the Schedule provides that,

“Unless otherwise agreed by the parties, if, without showing sufficient cause-

…

the Respondent fails to communicate his statement of defence in accordance with article 23 (1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations;

any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.”

These provisions show that the default of a party does not by itself entitle a claimant to default judgment.  The claimant is still required to prove his claims.  Thus in casu 2nd Respondent was entitled to issue the directions he made seeking clarification of the claim.  1st Respondent’s initial default did not bar it from presenting its case later on as it did.  The only concern were the undue delays caused by 1st  Respondent  which were condoned by 2nd Respondent.

He treated 1st  Respondent rather lightly on this score.  However that , by itself, does not warrant the nullification of proceedings.

Irrationality

The arbitrator’s decision is captured at the conclusion of his award in the following terms,

“The conciliator compulsorily referred the dispute for arbitration yet in my view the matter could only be referred for arbitration at the express will of the parties to abandon the procedures that collectively bind them enshrined in their code of conduct.  The procedures for settling disputes and grievances that are enshrined in the code should be held sacrosanct because they embody the voluntary collective will of the parties that are signatory of it.  The parties should be bound, and firmly so as such, unless there is legal provision to the contrary.  It is therefore my finding that claimant chose the wrong platform by approaching the NEC instead of pursuing the grievances in terms of the relevant code of conduct.

I hereby dismiss the matter for want of jurisdiction on the basis of the above findings.”

It is common cause that a labour dispute arose between the parties during the currency of their employment contract.  However Appellant left the employ of 1st Respondent before the matter was resolved.  It is that dispute which was referred by a conciliator to 2nd Respondent for arbitration.  2nd Respondent found that he had no jurisdiction over the matter. He reasoned that the parties

were bound by the terms of the applicable employment code and as such he could not determine the matter.

I consider that the Arbitrator was wrong.  The employment contract having terminated, the parties were no longer bound by the employment code.  Applicant was at liberty to take her grievances to other fora for determination.  Section 93 (1) of the Labour Act Chapter 28:01 (hereafter called the Act) empowers a labour officer/conciliator to deal with “a dispute or unfair labour practice” that has been referred to him.  Section 2 of the Act defines “dispute” as

“means a dispute relating to any matter concerning employment which is governed by this Act.”

The Act does not restrict the word “dispute” to mean dispute in the present tense.  It includes both past and  present disputes.  This means that an employee who has left his employer can still pursue a past dispute in terms of the said section 93.  The only bar are limitations imposed by the laws of prescription.  Such were not raised or argued in this matter.  In any event, it would be absurd and unjust to shut out an ex-employee from the ambit of section 93.  The employee may well have left the employer because of the dispute in issue.  So it does not make sense to deny him a hearing solely because he left the employer. I therefore consider that the Arbitrator was clearly wrong in declining jurisdiction.  With due respect, no reasonable person would have denied Applicant a hearing in these circumstances.  I find that the resultant award was irrational as argued on behalf of Applicant.

Wherefore it is ordered that,

The application is hereby allowed;

The arbitration done by and the arbitration award made by the 2nd Respondent dated 29th February 2012 are set aside; and

The matter is remitted back to 2nd Respondent for a re-hearing and determination of the matter.

G. MUSARIRI

PRESIDENT