Powertel Communications (Pvt) Ltd v Chiremba Abisha and 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/137/2020
HARARE, 30 JANUARY 2020
CASE NO. LC/H/137/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/137/2020

HARARE, 30 JANUARY 2020		             	    CASE NO. LC/H/256/18

AND 19 JUNE 2020

In the matter between:-

POWERTEL COMMUNICATIONS (PVT) LTD		Appellant

And

CHIREMBA ABISHA						1st Respondent

And

MABVUDZA FORTUNE						2nd Respondent

And

JANI MAGRET							3rd Respondent

And

CHISEMA NORMAN						4th Respondent

And

MAKAKATANWA REDFAN					5th Respondent

And

GARACHURU STEVEN						6th Respondent

And

NGWERUME CHALLENGE					7th Respondent

And

TAKAENDESA FADZISO						8th Respondent

And

PAZVAKAWAMBWA DAVISON					9th Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr A. K. Maguchu (Legal Practitioner)

For Respondents		Mr J Masocha (NEWUZ)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator J Ndomene dated 5 September 2018. The arbitrator’s findings were that,

The claim for non payment had not prescribed.

The claim for underpayment be granted.

The brief background of the matter is that some of the Respondents were employed by the Appellant as Loss Control Assistants and others as Messengers. When parties appeared before the arbitrator they made the following submissions.

The Respondents alleged that during their course of employment they were verbally advised by the Appellant that they were made permanent employees and only board officialisation remained. As a result the Respondents were allowed to access bank loans whose life span went beyond their contracts of employment. The Respondents were suddenly dismissed on the grounds that their contracts had expired.

The Respondents also alleged that the Appellant had underpaid them by avoiding salary increments provided for under SI 50/2012. Respondents also argued that they were suppose to be paid housing and non-pensionable allowances in terms of SI 50/2012. They thus claimed a total sum of $274 181-22 being arrear salaries as well as housing and non-pensionable allowances.

On the other hand the Appellant disputed that the Respondents were unfairly dismissed. The Appellant submitted that the Respondents have always been on fixed contracts and thus they were never informed that they were on permanent contracts. The contracts also clearly indicated that the Respondents were not suppose to have any expectation of being re-engaged upon termination of fixed term contract. On page 147 of the board minutes the Respondents were advised that the organisation was not allowing conversion of fixed term employees to permanent employees. The Appellant further argued that employees could get loans whether permanent or not and Appellant was just acting as surety.

The Appellant further stated that the claim of outstanding salaries from 2012 had prescribed in that it was only brought to the Designated Agent on the 9th of July 2016 i.e. 4 years after the cause of action arose and thus the arbitrator had no jurisdiction to preside over it. Appellant also stated that Respondents were not entitled to housing and non pensionable allowances.

The Appellant has filed the appeal on the following grounds,

The Arbitrator erred at law in hearing a matter over which he had no jurisdiction.

The Arbitrator erred at law in finding that the improper citation of all Respondents save for Abisha Chiremba could and was lawfully corrected through a replication.

The Arbitrator erred at law in failing to find that the entire or at least part of the claim had prescribed.

With the Appellant having posited that the claim could succeed without leading evidence the Arbitrator erred at law in disposing the need for a hearing on the basis that none of the parties requested for it.

The Arbitrator erred at law in finding that SI 50 of 2012 created ascertainability on the Appellant towards the Respondents.

The Respondents in response argued that,

The Appellant was lawfully notified of the correction of the citation of all the Respondents and Respondents were properly cited in replication.

The Arbitrator rightly found that prescription is subject to acceptations.

None of the parties was denied the opportunity to adduce evidence.

The Appellant should pay the Respondents their dues in terms of the Statutory Instrument.

It is common cause that,

The Respondents were employed on fixed term contracts for varying periods.

There is nothing on record to show that the contracts were converted to permanent employees contracts.

The claim of outstanding salaries dates from 2012 and were referred to the Designated Agent’s office on the 9th of July 2016 i.e. 4 years after the rising of the cause of action.

SI 50/2012gave increments to employees and salary increments accrued until 2014 when the Respondents left the Appellant’s employee.

What is to be decided is

Whether or not the arbitrator had jurisdiction to deal with this matter.

Whether or not the citation of the parties is proper.

Whether the arbitrator ought to have found that the entire claim had or at least part of it had prescribed.

Whether or not the arbitrator erred by failing to hear evidence on disputed facts.

Whether or not the arbitrator erred by recognising an award that had not been registered by the High Court.

Whether or not the arbitrator had the jurisdiction to deal with this matter.

It has been the Appellant’s argument that the arbitrator had no jurisdiction to deal with this matter because his name does not appear on the list of arbitrators who have been appointed by the Minister in terms of the Labour Act.

The Respondents in response stated that the arbitrator was duly appointed and thus had jurisdiction to hear this matter. There is no evidence on record to show that this arbitrator was appointed and that he had jurisdiction to deal with this matter. Therefore there is no proof that Honourable Ndomene was on the government list at the relevant time and that he had jurisdiction to deal with this matter.

Whether or not citation of the parties is proper

It is the Appellant’s argument that the citation of the parties as “Abisha Chiremba and others is improper because “others” is not a legal personae.

The Respondent in response stated that in terms of the Arbitration Act (Cap 7:15) a party can amend a claim or a defunct during the course of arbitral proceedings. It was further argued that the Respondents amended their claim through a notice of amendment and this notice of amendment was served on the Appellant and the Appellant did not dispute that it was served with this amendment.

There is nothing on record to show that the Respondents served the notice of amendment on the Appellant. In his findings the arbitrator dismissed this point in limine on the grounds that upon replication of papers the anomaly was rectified.

The Appellant’s argument is valued because others is not a legal personae. In the case of Fadzai John vs Delta SC 40/17 it was held that,

“In Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2)ZLR 246 it was stated that’

‘A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those as the defendant the summons is null and void ab initio.”

This therefore means that there was one person before the arbitrator. There was no application for joinder that was made.  The mere naming of the other Respondents did not bring them before the arbitrator. In this award therefore only one person Abisha Chiremba is the one who was before the arbitrator and he is the only one who can draw rights and obligations from this litigation.

Whether the whole claim or part of it had prescribed

It is the Appellant’s case that the arbitrator ought to have found that the entire claim or part of it had prescribed. It was said that this was because the Labour Officer cannot deal with a matter after 2 years have lapsed since the right to what accrued to a party.

On The other hand the Respondent stated that the matter/claim had not prescribed since it was continuing when it was referred to the Designated Agent.

Section 94 (1) of the Prescription Act states that,

“(2)	… no Labour Officer shall entertain any dispute or unfair labour practice unless

it is referred to him or

has otherwise come to his attention within two years from the date when the dispute or unfair labour practice first arose.”

The issue of outstanding salaries first arose in 2012 but was only referred to the Designated Agent in July 2014.

Section 94 (2)(1) of the Labour Act also states that,

“94 (2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a Labour Officer.”

It is common cause that the claim had gone beyond 2 years. The Respondents were employed on fixed term contracts some of which had expired. Once a contract had expired one would not say a dispute is continuing. The correct position of calculating prescription is from the time when the right to sue arose. This was clearly explained in the case of Brown v Tanganda Tea Company SC 96/16 as follows,

“In terms of Section 16 (1) and (3) of the Prescription Act (Chapter 8:11) prescription shall continue to run as soon as a debt is due. Moreover a debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have become award of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

It is my view that that for the fixed term contracts that had exceeded the prescribed time period they were suppose to make their claim it meant that they had prescribed by the time they were referred to the Labour Officer. It is only the claim that was reported within the 2 years from the date when the dispute first arose that have not prescribed.

Whether or not the Arbitrator erred by disposing the need for a hearing

The Appellant has submitted that it demanded a hearing when it submitted that the matter could not be resolved on papers. The Respondent in response stated that the Appellant did not demand a hearing but that it only stated that this matter could only resolved a “trial cause”. A trial involved hearing evidence. Thus therefore shows that Appellant requested a hearing and this was not granted.

Although the facts to be resolved through a hearing were not clearly stated it is clear that Appellant requested for a hearing and this was not granted.

Whether or not the arbitrator erred by finding that SI 50 of 2012 created ascertainable liability on the Appellant towards the Respondents

It is common cause that SI 50/2012 gave salary increment to employees. The Appellant did not effect these increments. This dispute was brought before (2) two independent arbitrators who dealt with this issue. By the time this matter was brought before arbitrator Ndomene the previous arbitral awards had not been registered with the High Court. I agree with the Appellant that without an order of the High Court recognising the (2) two awards as enforceable the arbitrator erred by finding that the Respondents could enforce rights from an unregistered award.

Therefore to sum up I find that grounds 5, 4, 3, and 2 have merit.

In the circumstances it is ordered that,

The appeal succeeds with costs.

The award be and is hereby set aside.

The matter is referred to another arbitrator for hearing within 30 days from the date of this order.

Dube, Manikai & Hwacha, applicant’s legal practitioners