Minerals Marketing Corporation of Zimbabwe v George Mvududu and 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/502/14
HARARE ON 18th MARCH, 2014
CASE NO. LC/H/148/13
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/ 502/14
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/502/14

HARARE ON 18th MARCH, 2014				             CASE NO. LC/H/148/13

AND 1st AUGUST, 2014

In the matter between

MINERALS MARKETING CORPORATION

OF ZIMBABWE						–	APPELLANT

And

GEORGE MVUDUDU					-	1ST RESPONDENT

And

JORRUM MUNYARADZI CHINAMASA		- 	2ND RESPONDENT

And

TINASHE KASERE						-	3RD RESPONDENT

And

TWOBOY MOYO						- 	4TH RESPONDENT

And

NHLANHLA MPOFU					- 	5TH RESPONDENT

And

WINNIFIELDAH KUDZANAI RUGUBE		-	6TH RESPONDENT

Before The Honourable E Makamure J.

For Appellant:	Mr I. Ndudzo (Legal Practitioner)

For Respondents :	Mr M. Magogo  (Legal Practitioner)

MAKAMURE  J,

This is an appeal against an arbitral award granted in favour of the respondents at Harare on 11th February 2013.

The brief facts of this matter are that the respondents who are former employees of the appellant were voluntarily retrenched in terms of the respective agreements it entered into with them.  Out of the agreements one issue was not met by the appellant. This is with respect to their bonus payments. The parties failed to agree on the interpretation of the paragraph relating to the payment of bonus. The matter was referred to conciliation. Parties failed to agree and the matter was referred to arbitration. The issues to be considered by the Arbitrator were:

To determine whether or not the claimants are entitled to full performance bonus for the period 2009 to 2010

Appropriate remedy.

The Learned Arbitrator ordered the appellant to pay each of the respondents a performance related bonus for the year 2009. This aggrieved the appellant leading to the present appeal. The grounds of appeal are as follows:-

The learned Arbitrator erred at law by failing to establish that the payment of a performance bonus to each of the Respondents was subject to a condition precedent that strictly required the declaration of performance bonus.

The learned Arbitrator grossly misdirected himself at law by not finding that the declaration of bonus could only be possible if the Appellant realized a profit.

The Arbitral Award is erroneous at law as it ignores the fact that the Appellant did not realize a profit in 2009 and thus it is impossible for Respondents to be entitled to a bonus for that period.

The Learned Arbitrator erred at law by misinterpreting the clear terms of the contracts between the parties and effectively imposed an Award which violates the contract signed by the parties.

The Learned Arbitrator misdirected himself at law by making  contract for the parties.

The Learned Arbitrator erred and fell into error by making a correct finding that the Appellant’s position and argument was meritorious and yet proceeded to make an award in favour of the Respondents.

The Learned Arbitrator erred at law by lumping the Respondents case without considering each individual Respondent on the merits of his/her own facts.

The Arbitral Award is bad at law as it orders the performance of an obligation which is ultra vires the contracts between the parties.

The Learned Arbitrator grossly misconstrued the correct factual and legal position and thereby made wrong conclusions of law.

Having listed the grounds of appeal it is my considered view that grounds 1, 2 and 3 deal with the same issue. Disposing of any one of them means effectively that the other two will have been considered. Grounds 4, 5 and 8 also deal with one issue.

Reference has been made to the respective retrenchment documents. The paragraphs relating to the payment of bonus are phrased as follows for 1st respondent :

“2A(h)	Performance bonus for 2009.

This shall be paid to the employee in accordance with his grade if declared.

Performance bonus 2010

This shall be paid to the employee in accordance to his grade if declared.”

and with respect to 2nd, 3rd, 4th and 5th respondents:

“Performance bonus for 2009.

The employee hereby accepts the above retrenchment package in full and final settlement of all monies due and owing him except the payment of bonus for 2009 and 2010 which will be implemented after the finalization of the audited …”

The payment of bonus for the 2nd, 3rd, 4th and 5th respondents was going to be done once the accounts had been audited to finality. So once that formality was completed, the bonuses became due and owing.

With respect to 1st and 6th respondents, the payment was to be done in accordance with the employee’s grade – ‘if declared’. The question of whether it would be posting a loss or a profit was not part of the agreement. Further in terms of the rules of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             interpretation, the law, should be interpreted so as to restoring rather than removing rights. This means that the respondents were to be paid in accordance with their grades. There was no option by the appellant but to pay. I therefore find that the Learned Arbitrator did not impose a contract on the parties. He did not make an order ultra vires the contract. He simply enforced it.

The law is clear, once parties enter an agreement, they are bound by it. A person who appends their signature to a document accepts the consequences of such conduct (see Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S); Blessing Mashizha vs. First Banking Corporation HH 186-99). If it turns out that it was a bad deal, there is no way that they can renege on it.

In the circumstances the Arbitrator did not misinterpret the terms of the contract. As noted earlier on the Learned Arbitrator did not act ultra vires the contract neither did he impose new contracts on the parties. I therefore find that there is no merit in all the grounds of appeal.

In the result the appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Mutamangira & Associates – Appellant’s legal practitioners

Gill, Godlonton and Gerrans – Respondent’s legal practitioners