Norean Muvezwa v Tonderai Nyamutenha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/692/2016
HARARE, 23 OCTOBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/692/2016

HARARE, 23 OCTOBER 2016			    CASE NO. LC/H/775/14

AND 4 NOVEMBER 2016

In the matter between:-

NOREAN MUVEZWA						Applicant

And

TONDERAI NYAMUTENHA					Respondent

Before Honourable L. Kudya, Judge

(IN CHAMBERS)

KUDYA, J:

This matter has been decided by this court on the basis of the papers filed of record in terms of section 89 (2) (1) of the Labour Act.  Impression created by the last dates the parties did anything about the matter is that the matter has been abandoned.

Brief facts of the matter are that the appellant employer had the respondent employee in her employ since 2011.  She however underpaid the respondent as she did not pay him his salary as per the prescribed tariff for domestic workers.  The 2 parties found themselves before a labour officer and finally at arbitration where the arbitrator ruled that the respondent had been unfairly dismissed and underpaid during his tenure of office.  The arbitrator ordered that the appellant pay the respondent $ 1 204 as outstanding salaries in full.  He also ruled that the employee was unfairly dismissed.  He therefore directed that the respondent be reinstated to his original position without loss of salaries and benefits or that he be paid damages in place of reinstatement.  It is this arbitral award which irked the appellant and drove her to appeal to this court seeking that the court set aside the arbitral award in question.

The grounds of appeal were set out as follows:-

Arbitrator failed and misdirected at law by (1) Holding that the respondent was unlawfully dismissed when he was not and when section 12 (7) Labour Act was not violated.

By failing to reveal the specific subsection of section 12 of the Labour Act which appellant allegedly violated.

By awarding $1 204 as outstanding salaries without proper evidence and disregarding the fact that the appellant and respondent had reached an oral agreement in terms of the settlement of the outstanding salaries.

By ordering reinstatement yet respondent was guilty of an offence and dismissed per section 4 (9) and (b) of SI 15/06.

In response the respondent maintained that:

Appellant unfairly dismissed him since she flouted Section 12 of Labour Act 17/02 by not conducting a disciplinary hearing if she had any grievance.

Appellant failed to apply SI 15/06 as defined in section 12 (B) (2) of Act 17/02.

Arbitrator correctly awarded the money since parties never had an oral agreement in terms of outstanding salaries.  In fact appellant underpaid respondent as she was paying him a salary below $85 pegged since October 2011 as the minimum wage for his position.

Remedy for unlawful dismissal is reinstatement unless appellant furnished the court with a document of the hearing minutes and determination. In the result respondent prayed that the appeal be thrown out for lack of merit and that there was no misdirection at law by the arbitrator.

The law is settled that appeals against arbitral awards should be on points of law see section 98/10, Labour Act.

As for the fact law debate see Muzuva v United Bottlers 1994 (1) ZLR 217.

The critical question here is whether it can be said that appellant set out clearly the point of law which was breached by the arbitrator to found the point of law. A reading of the arbitral award shows that this was quite a terse award which left a lot of questions than answers. For that reason it is difficult to confirm that it was done within the dictates of justice.  Of particular note is the fact that, whilst the arbitrator records the submissions of the parties as being that appellant was agreeable that she indeed owed respondent outstanding salaries the award does not show further what it is that was admitted and how he ruled on the set off of bricks which was put into issue by the employer.  It is apparent that there were a number of factual disputes which were presented before the arbitrator which he was supposed to rule on before making the order which he made.

It is clear in the court’s mind that this is an award calling for re-visitation.   To that end the arbitral award is set aside and it is remitted for a hearing de novo.

IT IS ORDERED THAT

The appeal be and is hereby allowed.

The arbitral award is set aside.

The matter is remitted to the arbitrator for a hearing de novo within a reasonable time from the receipt of this judgment.