Pemcol (Pvt) LTD V Kelvin Chitsinde

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/121/16
HELD AT HARARE 18 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/121/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/121/16

HELD AT HARARE 18 FEBRUARY 2016			CASE NO LC/H/747/15

& 4 MARCH 2016

PEMCOL (PVT) LTD						Appellant

KELVIN CHITSINDE						Respondent

Before The Honourable G Musariri, Judge

For Appellant			Mr P Chimbwanda, Manager

For Respondent		Mr J Denhere, Unionist

MUSARIRI, J:

On 29 June 2015 arbitrator P Chirongoma issued an arbitration award.  In terms thereof he ordered appellant to pay respondent a sum of $1 514.00 in respect of notice pay, cash in lieu of leave and underpayment of wages.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.

The relevant part of the grounds of appeal read as follows,

“1.	PemcoL (Pvt) Ltd t/a Pemcol Bakery and Confectionary was not properly warned, verbally or in writing, that 15 April 2013 was the deadline for submission of their statement of defence as indicated in the default award in Case No 066A/15.

Contrary to the conclusions reached in the default award that the respondent failed

to give an excuse or explanation, we handed in a letter on 20 April 2015, seeking

more time to submit the statement see copy attached.  We failed to discuss, with

Mr Chirongoma, the arbitrator, as the receptionist advised that he was away

in Bulawayo on business.

2.	Proof of identity of the claimant does not show to have been verified in the arbitration award…”

Respondent replied thus,

“1. 	There is no appeal before this Honourable Court.  The respondent contends that the Grounds of the appellant cannot be considered as grounds of appeal as they are all procedural issues which do not raise points of law neither does the issues raised by the appellant were part of the terms of reference given to the Honourable Arbitrator for determination.  Moreso, the appellant has not indicated the remedy which he is seeking before this Honourable Court as he is not aware of the purpose of his notice of appeal.

2.	It is the respondent’s submission that the appeal in question does not raise points of law, …”

Section 98 (10) of the Labour Act  [Chapter 28:01] (hereafter called the Act)  provides that

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

(The underlining is for emphasis.)

The complainant/s raised by appellant are to the effect that their defence was not heard by the arbitrator.  In other words they say the arbitrator conducted the arbitration irregularly.  That complaint raises matters of procedure.  Such matters are redressed by way of a review.  This court has review powers in terms of section 89 (d1) of the Act.  Appellant should have proceeded thereunder.  They erred in choosing to approach this court by way of an appeal.  In any event their grounds of appeal do not raise points of law relating to findings made by the arbitrator.  Respondent correctly rebutted that there was no valid appeal before the court.

Wherefore it is ordered that,

There being no valid appeal filed, the matter is struck off the roll.

G MUSARIRI

J U D G E