Knight Security (Private) Limited v Godfrey Mazivanhanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/377/2016
HARARE, 13 MAY 2016 &
CASE NO LC/H/584/2014
10 JUNE 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/377/2016

HARARE, 13 MAY 2016 &					         CASE NO LC/H/584/2014

10 JUNE 2016

In the matter between

KNIGHT SECURITY (PRIVATE) LIMITED			APPELLANT

Versus

GODFREY MAZIVANHANGA					RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	O Zimbodza  (Legal Practitioner)

For the Respondent     K Guteni  (Trade Unionist)

KUDYA J:

The appellant company appealed to this court against an arbitral award where the arbitrator ordered it to pay the respondent employee “$702 for the unfair labour practices committed.” (quoted words are verbatim words used in the award.)

The respondent in turn opposed the appeal. He claimed that in his view the arbitrator should actually have ordered that he be paid more than $702-00 taking into account that he was owed lots of overtime by the appellant and that he was receiving a salary below that which is stipulated in the industry code.

The background to the matter is that the respondent was in the appellant’s employ as a security guard. A labour dispute pitting the two against each other arose. The dispute ended up at arbitration where the arbitrator ruled for the respondent. Such a ruling irked the appellant employer and drove it to appeal to the Labour Court on the appeal which is the subject matter of this judgment.

The grounds of appeal were laid down as:

The arbitrator misdirected self to grant an underpayment order despite noting the absence of corroborative evidence in the matter.

The arbitrator erred to conclude that the respondent’s salary was arbitrarily reduced yet he admitted at the same time that salaries were reduced for everyone and which position was clear.

The arbitrator erred by not considering fact that the respondent had resigned. If he had considered that fact then there would have been no unfair labour practice. The arbitrator also failed to give reasons why such evidence was ignored.

The arbitrator erred grossly by plucking a figure of $702-00 from the air and awarding it to the respondent without specifying any particular unfair labour practice in respect of which the amount was based which failure to quantify was an irregularity at law. In the result the appellant prayed that the arbitral award be set aside and that it be ordered that the respondent resigned from employment.

In response to the appeal the respondent maintained that:

The arbitrator did not misdirect self since salaries of security guards are governed by the collective bargaining agreement for the security sector hence neither evidence besides what employee gave was required.

No salaries were reduced. The respondent was only underpaid from the date of employment to the date of termination.

Issues of unfair labour practices will always be there if an employee is underpaid in terms of the Labour Act.

Award of $702-00 was far less than the total amount due on the underpayments and the arbitrator did not misdirected himself.

In the result the respondent prayed that the appeal be dismissed for lack of merit and arbitral findings cannot be faulted.

In its oral submissions the appellant maintained that the arbitral award did not set out how he arrived at the award which he arrived at and such action was bad at law hence the award should be vacated on that account. It also noted that the arbitrator indicated in his award that both parties had not substantiated their positions but went ahead to give the $702-00 award. It also referred the court to its heads of argument where it admitted owing the respondent $220-00 for leave days and $14-00 increment to add up to $234-00. It therefore maintained that it did not appreciate where the arbitrator had plucked the figure he arrived at.

On the other hand the respondent maintained that underpayment was a fact and even the $702-00 award was in his view far less than what he was entitled to as his underpayments exceeded the award. He denied the reduction of salaries and maintained that guards’ salaries were governed by the collective bargaining agreement for the security. To that extent there was no other evidence required to found the award. Besides, the respondent had left job on 24 September 2013 after the appellant had made the working conditions intolerable for him.

It is settled law that any decision by any adjudicating body should be backed by reasons of how it was arrived at. It is also settled that where pecuniary loss is in issue evidence justifying the quantum claimed is pivotal to demonstrate how the figure eventually arrived at has been arrived at.

A reading of the award in the case at hand shows that it is a terse award. It even lamented the absence of sufficient evidence to found for either party. The arbitrator acknowledges the amount admitted by the appellant but however went on to order the    $702-00 and styled it as money for unfair labour practice committed. As the respondent correctly observed there is no clarity as to how the $702-00 figure was arrived at. Equally the respondent queries same. The court is also convinced that no meaningful exercise of calling for and assessment of evidence was engaged in. For that reason it would be improper to let the award stand. The remedy in the matter lies in the remittal of the matter for a proper quantification exercise which benefits both parties. The appeal therefore succeeds.

IT IS ORDERED THAT:

The appeal being with merit it be and is hereby allowed. The arbitral award is set aside and in its place the matter is remitted to be dealt with afresh by the arbitrator with parties bringing in evidence to support their positions and him assessing such evidence to come up with a legally sound award.

The matter has to be re-heard and concluded within three months from date of receipt of this judgment. Each party bears own costs.

Zimbodza & Associates, appellant’s legal practitioner