Municipality of Chinhoyi v Ezekial Muringani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/214/2013
HARARE, 5 JUNE 2013
CASE NO. LC/H/37/2013
JUDGMENT NO.LC/H/214/2010
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/214/2013

HARARE, 5 JUNE 2013					CASE NO. LC/H/37/2013

In the matter between:-

MUNICIPALITY OF CHINHOYI		-	Appellant

And

EZEKIAL MURINGANI				-	Respondent

Before The Honourable, B.T. Chivizhe: President

For Appellant		-		Ms M. Burukai (Legal Practitioner)

Antonio and Associates

For Respondent		-		Mr G. Chingoma (Legal Practitioner)

Dube, Manikai and Hwacha

CHIVIZHE, B.T.:

The matter was set down before one as an application for interim relief and a counter application for interim determination by suspending the arbitral award handed down on 06 December, 2012.  Both applications are premised on Section 92 E (2) of the Labour Act [Cap 28:01].  Both applications were counter-opposed.

Preliminary Issue

The Appellant, having failed to file Heads of Argument in respect of the application for interim relief as well as the main appeal, simultaneously filed an application for condonation of late filing of such Heads.  The application for condonation of late filing of heads was vigorously opposed by the Respondent.  I did on the date of hearing grant the application and indicated reasons were to follow.  The court in the exercise of its discretion, decided to give the Appellant the benefit of the doubt as regards his explanation for the delay in filing Heads of Argument.  I believed that the justice of the matter demanded that the matter be heard on the merits rather than for the matter to be disposed on the basis of a technicality.

Merits

The Appellant was employed by the Respondent as a town clerk.  In an arbitral award handed down on 06 December,2012 the Arbitrator found as follows;

“Facts before me clearly show that there were procedural irregularities in handling the matter.  I therefore award that Claimant be reinstated without loss of salaries and benefits from such date of unfair dismissal.  In the event that the employment relationship is no longer tenable the Respondent is ordered to pay damages in lieu of reinstatement quantum of which shall agreed by the parties.  Failure to agree on the quantum, the arbitrator to determine the quantum of damages.”

The Appellant in support of his application indicated that the Respondent had failed to comply with the order to reinstate the Appellant.  The Appellant was therefore approaching the court seeking in the form of interim relief, that the Respondent pay him the amounts due to him as damages in lieu of reinstatement.  The Appellant in an affidavit filed indicated the claims and the amounts claimed under each item.  By way of supplementary Affidavit filed Appellant amended the amounts due and payable.  The total damages prayed for stands at US$5.5 776.80.

Respondent opposed the application for interim relief on the grounds that; the application was improperly before the Labour Court as the Arbitrator had not yet quantified the arbitral award.  It was Respondent’s submission that the Arbitrator remained seized with the matter.  On the merits it was Respondent’s submission that it had good prospects of upsetting the arbitral award granted.  The Respondent proceeded to demonstrate this on the basis of three of the grounds of appeal filed.

It seems the Respondent made conflicting submissions as to the propriety of hearing the matter in this court.  On one hand Respondent’s submitted that the matter was improperly before the Labour Court on the basis the Arbitrator had not completed the process.  The Arbitrator still needed to quantify damages as the final step the parties having failed to agree on reinstatement.

On the other hand the Respondent filed an appeal against the arbitral award.  By so appealing the Respondent is clearly challenging the complete findings by the Arbitrator including his award.  It would appear to me therefore illogical for the Respondent to insist that the matter is improperly before the Labour Court in order for the matter to go back to the Arbitrator for him to complete the process by quantifying the damages.  There would be no purpose served in my view by the parties’ attendance at quantification proceedings when clearly the Respondent is challenging the basis of the award including the aspect of damages.

Finally I believe it would be fool hardy for this court to proceed to quantify the damages as prayed by Appellant in the light of the challenge presented by the Respondent in his appeal against the award.  That would be premature.  I believe it is in the interests of justice for the parties to await the determination of the Respondent’s appeal.  From a brief overview of the grounds of appeal filed it would appear the Respondent is raising arguable issues on the merits.

It is for these reasons I decided to dismiss the application for interim relief and grant the counter-application for an order suspending the operative of the arbitral award pending the hearing of the appeal matter.

Wherefore it is ordered that;

The application for interim relief by the Appellant be and is hereby dismissed with costs.

The counter – application for interim determination by the Respondent be and is hereby granted with costs.

The operation of arbitral award handed down on 06 December 2012 be and is hereby suspended pending the hearing of the appeal matter under reference LC/H/37/13.