Norton Town Council v Andrea Banda & 60 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/241/2014
HARARE, 15 JANUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/241/2014

HARARE, 15 JANUARY 2014 &			  CASE NO LC/H/284/2012

9 MAY 2014

In the matter between:

NORTON TOWN COUNCIL						APPELLANT

Versus

ANDREA BANDA & 60 ORS						RESPONDENT

Before The Honourable L Kudya   :   Judge

For the Appellant		  A Muchadehama  (Legal Practitioner)

For the Respondent         B  Dhanda (Trade Unionist)

KUDYA J:

This is an appeal against an arbitral award which was made in favour of the respondent (“employees”) against the appellant (“employer”).

Facts of the case are that the respondents who are in the respondent’s employ approached the arbitrator arguing that the appellant had committed an unfair labour practice by paying them salaries lower than their colleagues who are employed by the appellant. The claim before the arbitrator was also to determine whether the respondents were Council employees or Civil Servants whose salaries had to be paid as per Public Service scales. At arbitration it was ruled that the respondents were Council employees whose salaries had to be regularised according to the Council scales. This was ordered to be done within 14 days of the arbitral award failing which the parties were free to approach the arbitrator for quantification of the award. It is this award which irked the appellant and resulted in it noting the appeal which is the subject of this instant judgment.

The appellant filed with the court lengthy grounds of appeal which however in summary form can be concluded to be the following:

Arbitrator erred to conclude that the respondents were Council employees.

Arbitrator erred to conclude that the appellant had committed an unfair labour practice by paying the respondents salaries equivalent to those payable in the Civil Service.

Arbitrator erred to order that the appellant within fourteen days of his order rationalise and regularise the payments due to the respondents.

As earlier indicated the appeal grounds were so badly framed that even the respondents in their response found it so difficult to respond to same. Being that as it were the respondents maintained in summary form that the arbitrator was right to order as he did and his decision was backed by evidence which was presented before him hence there was no basis to find fault with his decision.

It is important to observe at the outset that the law is clear that appeal ground have to be clear and concise otherwise they will be ruled a nullity justifying the dismissal of the appeal in question.

A reading of the grounds in the instant case tempts the court to dismiss the appeal on that technical ground that they are ill framed. However in a bid to avoid being technical and to ensure finality to litigation the court was persuaded that it could still rule on the merits of the appeal notwithstanding the fact that it was ill couched by the appellant.

Before dealing with the merits it is important for he court to dispose of the point in limine which was raised by the appellant. The same issue also arose at arbitration and the arbitrator ruled that even though it was clear that the respondents had not been cited with sufficient particularity that was not fatal to the case. It is in that light that the arbitrator allowed the matter to proceed to the merits the ill citation notwithstanding. As regards the citation it is indeed apparent from the record that the sixty other respondents have not been described with sufficient particularity. It is also worth noting that the union register tendered by the respondents’ representative does not in any way cure the defect of citing the parties sufficiently. It is worth noting that there is no record of the clear identity of each of the other sixty others as well as their consent to them having argument presented for Banda to also apply to them. It is however worthy noting that it is not all procedural irregularities which vitiate proceedings.

In the instant case such an anomaly can be cured by an appropriate application to cite the parties adequately and does not go to the root of the case. To that extent the court does not find fault with the arbitrator’s decision to condone the ill citation and his subsequent dealing with the matter on the merits. As pointed out even if the final judgment were to be said to apply properly to Banda the net effect of the decision could be made to extend to the other parties upon their being properly joined on the matter on or appropriate application.

Turning to the merits of the case it is important to note that after oral submissions were made on the matter, parties were invited to file with the court documents pertaining to the status of the respondent. A reading of the filed documents did not add much to what was already on file or what was submitted to the arbitrator. The only question that was therefore left for decision was whether the conclusion reached by the arbitrator that the respondents were council employees was so outrageous as to defy logic and to be elevated to a point of law properly appealable in a labour matter. See Sable Chemicals Industries (Pvt) Ltd v David Peter Easterbrooke SC-18-10 case on what a point of law as opposed to fact is.

A reading of the arbitral award shows that the arbitrator was persuaded by the first respondent’s contract of employment, the misconduct charge sheet samples issued under the hand of the council and the letters from the Ministry of Health that the respondents were indeed the appellant’s employees.

The court finds no fault with that finding as backed by the evidence on record. The ground of appeal on the status of the respondents being without merit should therefore be dismissed.

In the alternative the appellant argued that the arbitration should have concluded that there was no unfair practice because the respondents were earning salaries in the Public Service scale and their contracts said had to receive such a scale. A reading of the record once more does not seem to support that save to some reference in a letter from council to that effect. For that reason the court finds no basis upon which to interfere with the arbitral award.

On the last ground all that the arbitrator did was to set a compliance period and whether such was practical or not did not detract from the import of that order. In essence the fact that the fourteen day period could be deemed to be short does not invalidate the arbitral award in question as it would be open for the appellant to seek extension for compliance with the same.

In the main it is clear that all the grounds of appeal are without merit and the appeal should accordingly fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

Mbidzo, Muchadehama, Makoni, appellant’s legal practitioners