Linkmaster Private Limited v David Simeti & 13 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/435/13
HARARE, 1ST AUGUST & 27TH SEPTEMBER, 2013
CASE NO. LC/H/53/2013
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/435/13

HARARE, 1ST AUGUST & 27TH SEPTEMBER, 2013	 CASE NO. LC/H/53/2013

In the matter between

LINKMASTER PRIVATE LIMITED			–	Appellant

And

DAVID SIMETI & 13 OTHERS				- 	Respondent

Before The Honourable B.S. Chidziva, President

For Appellant     -  C Mavhando (Legal Practitioners)

For Respondent: 	 -  B. Kanyemba (Legal Practitioner)

CHIDZIVA, B.S

This is an appeal against the decision of Honorable Arbitrator J. Mguni dated 7 January 2013. The award states as follows:-

“The Respondent is hereby ordered to pay the outstanding amounts totaling $8 665,00 to the Applicants as shown in the breakdown detailed in Schedule 1. The outstanding amounts must be paid in the following manner;-

First instalment:  to be paid on or before 31 January 2013

Second instalment:  to be paid on or before 28 February 2013 and

The last instalment to be paid on or before 31 March 2013.

The last instalment to be paid on or before 31 March 2013.

The Appellant’s grounds of appeal are that;-

The Honourable Arbitrator did not take into account our submissions

The Honourable Arbitrator grossly misdirected himself by accepting figures presented by the Workers Committee.

The Respondent in response told the Court that;-

The Applicant’s appeal has no merit whatsoever.

The Applicant has not exhausted all domestic remedies.

The Applicant is in breach of section 97 subsection 3 of the Labour Act.

The brief background of this matter is that on the 23rd of August 2012 the parties appeared before the arbitrator. The Respondents were claiming leave pays for the period between 2009 and 2010. The Appellant was disputing the amount which the Respondents were claiming. On the 17th January 2013 the arbitrator awarded the Respondents what they were claiming that is US$8 665,00.

The Appellant is therefore praying that the award be set aside and that the matter be heard afresh. The Respondent on the other hand prayed to this Court that the appeal be dismissed as it clearly lacks merit.

Section 98 (10) of The Labour Act [Cap 28:01] states that:-

“An appeal on a question of Law shall be to the Labour Court from any decision of an arbitration appointed in terms of this section.”

In the case of Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at page 220 GUBBAY CJ on points of Law and facts had this to say:-

“…….the term question of Law is used in three distinct though related senses. First  it means a question which the Law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter. Second it means a question as to what the Law is.” Thus an appeal on a question of Law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter and Third any question which is within the province of the Judge instead of the jury is called a question of Law.”

In the case of Hama vs NRZ 1996 (1) ZLR 664 (S) it was also held that a gross misdirection on facts can amount to an error in Law.

Whilst the arbitrator in his judgment stated that (1) the matter was to be brought to finality (ii) the Respondent did not submit the payment plan. The judgment does not talk about the

Exemptions that the Appellant claims he was granted

The outstanding amounts

The employees who had outstanding leave days.

The Labour Laws have been put in place to ensure that there is social justice at work-places. It is this justice that is required in this matter. Section 18 of the schedule to the Arbitration Act requires that parties should be treated equally at work-places.

In view of the foregoing it is the considered opinion of this court that the matter be referred back to the arbitrator for him to consider all the issues that have been raised by the Appellant.

IT IS THEREFORE HEREBY ORDERED THAT:-

The matter is remitted to the arbitrator for a fresh hearing

The matter is to be concluded by the 30th of October 2013

Each party to meet its costs.

Mhishi Legal Practice – Appellant’s Legal Practitioners