Robtab Foods V Oswell Kugara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/77/13
HELD AT HARARE ON 7 MARCH 2013
CASE NO. LC/H/652/11
JUDGMENT LC/H/77/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/77/13

HELD AT HARARE ON 7 MARCH 2013		CASE NO. LC/H/652/11

In the matter between:

ROBTAB FOODS				-			Appellant

And

OSWELL KUGARA				-			Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				No Appearance

For Respondent				Mr S. Maoneka (Unionist)

NDEWERE E.F.

Background:

On 24 July, 2012, the Appellant’s Legal Practitioner applied for a postponement saying he had just been engaged and he needed time to take instructions and file relevant papers.  The Respondent’s representative opposed the application and said this was a delaying tactic by the Appellant who has always been aware of the case and should have sought counsel earlier.  He said the Respondent was being prejudiced by the delay.  After hearing arguments, the Court granted the postponement but ruled that this would be the last postponement at the instance of the Appellant.

On the date of the hearing, 7 March, 2013, the Appellant and his Legal Practitioner did not appear.  The Legal Practitioner sent a letter with a messenger asking for a postponement.  He did not even send another Legal Practitioner to apply for the postponement on his behalf.  In view of the Court’s order of 24 July, 2012 which the Appellant’s Legal Practitioner was aware of the Court had no choice but to proceed with the appeal hearing in the absence of the Appellant and its legal Practitioner.

Facts of the case:

The Respondent was employed by the Appellant as a Salesman for 5 years.  Respondent says on 15 March, 2011, he received a letter dated 17 December, 2010, giving him notice to terminate his contract from 1 December, 2010 to 31 February, 2011.  Respondent disputed the legality of the notice as it was retrospective.  Thereafter, the parties negotiated an exit package but they failed to agree on notice pay, relocation allowance and on the quantum of the other claims.  The matter was referred to arbitration.

At arbitration, the Respondent claimed $2,400 as service pay while the Appellant offered $1,400.00.  The Arbitrator awarded the $1,400.00 offered by the Appellant.  On severance pay, the Respondent claimed $720 while the appellant offered $240.00.  The Arbitrator awarded 740.00.  On notice pay, the Appellant did not offer anything and the Arbitrator awarded $740.00.  On gratuity, the Appellant agreed to pay $240 and this is what was awarded.  Respondent claimed $240.00 relocation allowance while Appellant offered to transport the Respondent and his goods to Zvishavane.  The Arbitrator awarded $240.00.  The total award by the Arbitrator was $3,360.00.  The Respondent claimed payment of the total award at the rate of $480.00 per month but the Appellant offered to pay at $303 per month.  The Arbitrator’s award was that the award should be paid off at the rate of $400.00 per month, up to 31 May, 2012.  The Appellant appealed against the award.  Its grounds of appeal were as follows:

The learned Arbitrator grossly erred in law in finding that the Respondent was unlawfully dismissed from employment.  The Appellant succumbed to the economic hardships and was forced to close down business.  This was beyond the Appellant’s control.  There was no reason to keep employing the Respondent since there was no business to take care of.

The Arbitrator grossly misdirected himself by upholding that the Respondent be paid notice period when in fact a proper notice was duly served on him, which he read and signed.  The Arbitrator failed to see the glaring inconsistences in the respondent’s allegations that he received the notice on the 15th of March 2011 which had the effect of terminating his contract on the 18th of February 2011.

The Arbitrator erred in ordering the Appellant to pay the Respondent relocation damages when in fact the Appellant offered to physically transport the Respondent and his belongings to his destination.  This was despite the Arbitrator’s knowledge of the Appellant’s serious cash flow problems.

The relief sought by the Appellant is as follows:

THAT the appeal succeeds with the effect of overturning the decision ordering the Appellant to pay Relocation allowance as well as Notice to the Respondent.

THAT the Appellant pay the Capital sum in an installment of US303 per month.

Looking at the grounds of appeal, it is clear that Appellant has accepted the award on

Service Pay		-		$1,400

Severance Pay		-		740.00

Gratuity			-		$240

because it is not challenging those.  Notice pay and relocation allowance is what is being disputed.

From the outset, the Respondent raised the following points in limine:

That the Appellant was approaching the Court with dirty hands in that he had neither complied with the award nor applied for stay of execution.  He said that point alone was sufficient to dismiss the appeal and order the Appellant to comply with the award before he can approach the Court for any assistance.

The Respondent also submitted that the Appellant has accepted amounts in the award totaling $2,380 and only disputed two issues amounting to $980.00, he should have been paying the undisputed amounts; leaving the appeal Court to rule on the $980 being disputed.  However, the Appellant has not paid anything since the date of the award.

The Court agrees with the Respondent that a litigant who has failed to comply with a decision of a lawful authority which has not been set aside in terms of the law should not come to Court seeking the Court’s assistance.  He should comply with the decision first and argue afterwards.  This dirty hands principle is well established in our law and the Respondent is correct that the failure to comply with the award when there is no order staying execution of the award is sufficient reason to dismiss the appeal.  In Gaylord Baudi vs Kenmark Builders (Pvt) Ltd H-H-2012, it was held that an Arbitrator’s award is binding until set aside on appeal.  In the same case, it was pointed out that an interim determination suspending execution of the award can be obtained.  If an interim award suspending execution has not been obtained, then the award must be complied with.  In the Associated Newspapers of Zimbabwe vs Minister of State, Information and Publicity and Others,2004 ZLR 538, the Supreme Court pointed out that if a party has not complied with one lawful order, he is barred from coming to Court to enforce other rights until he has purged his contempt of failing to abide by the other lawful order.  The Appellant’s “dirty hands” are therefore sufficient reason to dismiss the appeal.

In addition, the Court has noted that the appeal does not raise any points of law as is required by Section 98 (10) of the Labour Act.[Chapter 28:01]  Appellant has accepted liability to the Respondent and has accepted three quarters of the award.  Even on the notice pay and relocation allowance, the Appellant has raised factual issues and not points of law.  The Appellant is saying it gave notice but the Arbitrator made a factual finding that notice was not given.  The Appellant does not dispute relocation liability but preferred to transport Respondent but the Arbitrator made a factual finding that paying cash was more convenient to the Respondent.  Even the relief being sought shows that the Appellant is arguing over the $97.00 difference between the $303.00 he offered to pay per month and the $400.00 per month which was awarded; thus reinforcing the point that no point of law arise in the appeal.

In view of the above, the appeal has no merits and it is hereby dismissed.  Because of the delay in paying the Respondent even the undisputed amounts since the date of the award, the Appellant is hereby ordered to pay the US$3,360.00 awarded by the Arbitrator as a once off payment to the Respondent within a month after the date of this order.

There is no order on costs.

E.F. NDEWERE

PRESIDENT