Management Training Bureau v Kanyedze Josiah & 7 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/266/16
HELD AT HARARE 18 MARCH 2016
CASE
JUDGMENT NO LC/H/266/16
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IN THE LABOUR COURT OF ZIMBABWE			  JUDGMENT NO LC/H/266/16

HELD AT HARARE 18 MARCH 2016					CASE NO LC/H/793/13

& 13 MAY 2016

In the matter between:

MANAGEMENT TRAINING BUREAU			Appellant

And

KANYEDZE JOSIAH & 7 OTHERS			Respondent

Before The Honourable L Kudya, Judge

For Appellant			Mr T J Mafongoya (Legal Practitioner)

For Respondent		Ms K Muyangwa (Legal Practitioner)

KUDYA, J:

This is an appeal against an arbitral award made in favour of the respondents employees against the appellant employer in a labour matter which pitted the 2 parties against each other.

Facts of the matter are that respondents approached the arbitrator alleging unfair dismissal, non-payment of terminal benefits and overtime.  He ruled that there was no unfair dismissal, that respondents were not entitled to gratuity, overtime was granted per document which arbitrator stated parties had agreed upon as setting out same, cash in lieu of leave had been paid on expiry of the respondent’s contracts and as regards non-payment of salary to worker, receptionist, cleaning assistant and main kitchen he ruled that employer had to pay that as per document he had agreed to with the respondents.

The appellant was irked by the arbitral award in particular based on the arbitrator’s finding that if the employer had conceded to payments of overtime as per certain document tendered and said to have been confirmed by the arbitrator.  This drove it to appeal to the labour court in the appeal which is the subject matter of this judgment.

The appeal grounds were styled as such:

Arbitrator grossly erred and seriously misdirected self to certify a document which he claimed was a true copy of the calculations of the parties whereas the document so certified does not involve any calculation by the appellant.

Arbitrator grossly erred and misdirected self by awarding respondents an amount as arrear overtime when the evidence before him was conclusive that the respondents were not owed any overtime payments.

In the result the appellant prayed that the arbitral award be set aside and be

substituted with this order:

“The respondent (now appellant) (my emphasis) does not owe the claimants any amount as arrear overtime and therefore the claim of the claimant be and is hereby dismissed with no order as to costs if appeal is unopposed, with costs if it is opposed.”

In response to the appeal the respondent maintained that:

Arbitrator did not misdirect self by certifying the calculations by the parties into the award since parties had agreed by consent at first that overtime was due to the respondents.  Both sides forwarded calculations which was further substantiated orally relating to the overtime payment.

In the result the respondent prayed that the appeal be dismissed and that the

arbitral award be confirmed.  A reading of the 2 appeal grounds speak to the same subject matter so there is need to decide both as a single ground.

It is noteworthy that when the parties presented before the instant appellate court the main submissions from appellant was that it was not privy to the so called “confirmed” overtime payment document.   Equally when the respondents made oral submissions they indicated that the document was the arbitrator’s brainchild.  Unfortunately when one tries to read through it and juxtapose it with the documents tendered then there is no clear link as to how such a document was arrived at.

As both parties agreed none of their signatures appear on that document and it is not apparent how it is claimed that their input gave birth to that document.  It could well be clear that respondents had overtime entitlement but the arbitral award and the notes filed of record do not demonstrate such findings or how they could have been arrived at.  It is clear that the terse award does not assist anyone in seeing through how it was arrived at.  On that account it has to be vacated and the whole process vis the overtime issue has to be done de novo before another arbitrator in a procedurally correct fashion since the one who did instant award is said to be late now.

IT IS ORDERED THAT

Appeal being with merit it be and is hereby allowed with costs.  The arbitral award in so far as it relates to overtime is set aside and in its place the matter is remitted to arbitration to be decided afresh in a procedurally correct matter on the overtime issue by an arbitrator from the list of appointed arbitrators.

The hearing has to be done within 3 months of receipt of this judgment.

Matsikidze & Mucheche, appellant’s legal practitioners

Muyangwa & Associates, respondent’s legal practitioners