Premier Services Medical Investments v Thulani Ncube and 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/217/25
HARARE, 19 MAY, 2025 AND
16 JUNE 2025
CASE NO LC/H/181/25
---------


THULANI NCUBE AND 3 OTHERS	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- N. Tonhodzai, Attorney

For Respondents	- K. Masasire, Attorney

MUSARIRI, J:

On 10th January 2025 at Mutare, Arbitrator C. Mutiba issued an award which ordered appellant to pay respondents a total amount of US$10,088.08 being arrear salaries. Appellant then appealed the award to this Court in terms of Section 98(10) of the Labour Act Chapter 28:01 (hereafter called the Act). Respondents opposed the appeal.

In limine

Respondents’ papers took the point that the grounds of appeal were repetitive. However in oral argument they abandoned the point. They also agreed to argue the matter on the basis of issues as set out by appellant.

Issues

Likewise the Court will deal with the three (3) issues set by appellant in turn.

1. Whether the arbitrator dealt with a matter which was res judicata:

In its heads of argument applicant argued that;

“14. The matter was simply this: if the period of January to April 2023 is found in the period that spans from July 2022 to September 2023 then the issues were decided in the Certificate of Settlement which dealt with those periods.

15. This is more pronounced when one considers that the Certificate of Settlement says the figures agreed upon are those that the Appellant owes the Respondents.

16. It follows that if Appellant is to owe Respondents the cause of action will not arise

from salaries to (sic) spanning from July 2022 to September 2023.”

In her award the Arbitrator dealt with the issue thus;

“According to the statement of arrears submitted by the Respondent as annextures B1 to B4 for outstanding salaries, the period January to April 2023 was excluded. However in the same statements the Respondent explained the reasons for excluding the period and I quote,

‘Please be advised that the principle of No Work No Pay was applied with effect from 1 January 2023 and during that period PSMI staff members were participating in an unlawful job action (strike and picketing)…’

So according to the Respondent the reason for excluding the period in question was that the Claimants were engaged in an unlawful Collective Job Action. While on the other hand the claimants did not defend this position of not being paid due to participation in an unlawful Collective Job Action…

According to this Section the Respondent cannot just claim without providing proof. The Respondent as he claims was supposed to submit the Disposal Order from the Labour Court which gives the direction not to pay the claimants salaries for the period they participated in an unlawful Collective Job Action or alternatively the Respondent should have conducted disciplinary hearings against the claimants and the outcome was to suspend salaries for the period in question. Without evidence the Respondent has no right to withhold the salaries…”

The Arbitrator’s take is clearly wrong as it contradicts the letter and spirit of the parties’ Certificate

of Settlement dated 6th December 2023. The Certificate reads,

“	Concerning

Alleged none-payment of Salary Arrears Was resolved by agreement of the parties on the 6th of December 2023.

And further that the terms of the agreement areas follows;

The claimants/employee party i.e. T Ncube, L Tauya, K Chitimbe & T Mungofa together with the employer party Premier Services Medical Investments have agreed on the following quantifications of the arrear salaries:

Thulani Ncube	US$3 574.42 Kerlvin Chitimbe US$3 475.31 Loraine Tauya	US$4 102.87 Tendai Mungofa    US$3 597.22

This settlement is just an agreement between the parties on quantification of what the employer party owes the employee party.”

The Certificate was signed and issued by M Chikomwe in her capacity as the Conciliating Authority in terms of Section 93(2) of the Act. The Certificate is also signed by and/on behalf of the parties.

The main import of the Certificate is that as on its date 6 December 2023 all arrear salaries were quantified by the Certificate. Parties are entitled to settle debts between themselves by whichever

calculation they deem appropriate. If the calculation omits certain items by design or otherwise they are bound by the settlement which is an enforceable contract. The contract cannot be re-visited say in casu by claiming arrears for the period January to April 2023. In other words the Arbitrator improperly re-opened a matter that had been lawfully settled by the parties as shown by the Certificate of Settlement. Apparently the Certificate was registered as an order of the Magistrates Court which is why the issue has been framed as res judicata. Neither respondents’ heads of argument nor their oral argument could save arbitral award. This conclusion aligns with comments by the learned author RH Christle in Business Law in Zimbabwe (1998) at p108

“If a dispute arises over the scope of a compromise, the compromise agreement must be construed in the ordinary way, to ascertain the common intention of the parties. If the common intention is to settle all matters finally between the parties, all disputes existing at the time of the compromise agreement will be settled by it…”

B. Whether there are conflicting judgments:

The so called conflicting judgments are the Certificate of Settlement and the Arbitral Award. Neither of them are judgments strictu sensu. An arbitral award may be considered a ‘judgment’ in the broader sense of the word. However the certificate is not a judgment least of all by the Conciliator. The certificate is a compromise by the parties which settled their pre-existing obligations as shown above.

C. Whether the Arbitrator wrongly interpreted Section 107 of the Labour Act:

The resolution of issue A above, renders this issue immaterial. It is tantamount to a red herring.

Conclusion

The foregoing analyses shows that the parties compromised/settled all liabilities to each other at the time of their Certificate of Settlement. Therefore, the Arbitrator wrongfully reopened the issue of liabilities which had been lawfully put to rest. Her award ought to be set aside as prayed for by appellant.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The arbitral award issued by Arbitrator C. Mutiba on 10th January 2025 is set aside and substituted thus,

‘Claimants’ claims are dismissed with no order as to costs’; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E