Madina Fabrics v Patson Zigede

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/397/2016
HARARE, 23 MAY 2016
CASE NO. LC/H/861/15
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/397/2016

HARARE,23 MAY 2016				       CASE NO. LC/H/861/15

AND 23 JUNE 2016

MADINA FABRICS					Appellant

PATSON ZIGEDE						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant		Mr G. Madziva, Manager

For Respondent		Mr P. Zigede, Respondent

MUSARIRI, J:

On 7th July 2015 Arbitrator R.E. Nhiwatiwa issued an arbitration award at Harare.  He ordered Appellant to pay Respondent an amount of $3 129.27 as notice pay and terminal benefits arising from the parties’ employment contract which had been terminated.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

Appellant’s case is set out in their Heads of Argument.  The relevant portion reads as follows;

“The disputants entered into a certificate of settlement before the NECCS Designated Agents Mlilwana on 18 November 2014 which clearly spelt out the terms and conditions of payment as follows:

The employer agreed to pay complainant his terminal benefits amounting to $1,426.00 in instalments of $300.00.  The first payment of $300.00 will be made on 25 November 2014, the complainant will be paid $300.00 monthly instalment until the amount is cleared.

However, after receiving the first payment, Respondent clandestinely re-approached the conciliator and obtained a certificate of no settlement concerning the same matter, unbeknown to Appellant.  Appellant continued to comply with the agreement and has paid the money owed to Respondent in full, through his representative.”

Filed of record is a certificate of settlement dated 18th November 2014.  It confirms the parties’ settlement as set out in Appellant’s submissions.  The Certificate was issued by Conciliator T. Mlilwana and duly signed by or on behalf of both parties.

Respondent explained his resort to conciliation the second time as follows;

“6.	The Applicant only managed to pay $300.00 in November 2015 and, failed to pay the December instalment.  After failing to pay the December instalment I then went on to the conciliator to lodge the complaint of non-compliance to the Certificate of Settlement who then issued a Certificate of No Settlement and Reference to Arbitration.”

However the Arbitrator went on to award an amount ($3 129.27) far in excess of the amount agreed by the parties ($1,426.00). What the Arbitrator simply ought to have done was to award what was outstanding on the agreed amount.  He wrongfully re-opened the matter and awarded items in excess of those earlier agreed by the parties.  Clearly his award cannot be sustained.  In any event Appellant has since cleared the outstanding balance on the agreed amount.  Hence the award needs be set aside in its entirety.

Wherefore it is ordered that,

The appeal be and is hereby allowed; and

The arbitration award issued by Arbitrator R.E. Nhiwatiwa dated

the 7th July 2015 is set aside.

G. MUSARIRI

J-U-D-G-E