Rolex (Pvt) Ltd v Alice Ndhlela

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/652/2016
HARARE, 27 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/652/2016

HARARE, 27 MAY 2016				  	CASE NO. LC/H/107/15

AND 21 OCTOBER 2016

In the matter between:-

ROLEX (PVT) LTD				Appellant

And

ALICE NDHLELA				Respondent

Before Honourable R.F. Manyangadze, J

For Appellant 	Ms S Nyagura (Legal Practitioner) with Mr T Marume (Legal Practitioner)

For Respondent		Mr B Pesanai (Legal Practitioner

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 20 January 2015, in terms of which the respondent was awarded damages for loss of employment.

The quantification award followed an award handed down on 4 November 2014 wherein the appellant was ordered to reinstate the respondent, failing which it was to pay her damages in lieu of reinstatement.

The respondent was awarded a total amount of US$36 284 in damages. The award included back pay and benefits for a period of 28 months prior to the effective date of the award, which was 7 November 2014.  The damages for loss of employment were for a period of 24 months from November 2014.

The appellant took issue with both aspects of the award, and lodged an appeal on the following grounds:

“1.	The Arbitrator grossly erred and seriously misdirected himself on a question of law in disregarding the Supreme Court decision in Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S) by quantifying damages without hearing oral evidence.

The Arbitrator grossly erred and misdirected himself on the law by awarding the respondent back pay whereas the order for reinstatement was that the respondent be reinstated with effect from 7th November 2014, thereby not awarding the respondent any back pays.

The Arbitrator grossly erred at law and on the facts and seriously misdirected himself in failing to give a determination on the preliminary objection by the appellant that a consultant has no locus standi to represent litigants before Arbitrators.”

The point taken by the appellant, in the first ground of appeal, is that the arbitrator heard no evidence, on the basis of which he awarded 24 months damages for loss of employment.  All he relied on were submissions made by the parties’ representatives.  No evidence was adduced from the parties themselves, to guide the arbitrator in ascertaining the appropriate period for which to award damages.  On the need to adduce evidence, the appellant referred the court to the cases of Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S) and Redstar Wholesalers v Mabika SC 52/05, among others.

In Ruturi v Heritage Clothing, supra, GUBBAY CJ set aside an award of damages, holding that;

“For these reasons, the award must be set aside, for to quantify damages, or indeed make any finding, on no evidence, is to err in law.  See R v Birmingham Compensation Appeal Tribunal, Ex p Road Haulage Executive [1952] 2 All ER 100 (QB) at 101F; Wade Administrative Law 6 ed at p 320; de Smith Judicial Review of Aministrative Action 4 ed at p 133.”

At the hearing of the matter, the respondent conceded there was need to adduce evidence, especially on the period it would take respondent to find alternative employment.  This is a crucial aspect of the evidence on damages, as it enables the court to assess the period that should be covered by the award of damages.  Ms Nyagura, for the appellant, rightly submitted that in the light of this concession the first ground of appeal should be allowed.

The second ground of appeal is concerned with the award of back pay.  The arbitrator, as indicated, awarded back pay dating back to 28 months from November 2014.  This yielded a total amount of US$16 800 back pay.

The original award, from which the quantification stems, reads as follows:

“WHEREFORE, after carefully analysing the facts and law, it is hereby ordered that:-

The dismissal of the Claimant be and is hereby set aside.

That the Claimant be reinstated with effect from 7 November 2014 without loss of salaries and benefits.

If reinstatement is no longer tenable, any party to approach the arbitrator for quantification of damages on or before 30 November 2014.”

The appellant’s contention is that there was no basis for awarding back pay when the order for reinstatement was that the respondent was to be reinstated with effect from 7th November 2014.  There was no further order, in the arbitral award, requiring that back pay be paid from a particular date, prior to 7 November 2014.  There was no retrospective order to allow for the payment of back pay.

The respondent, on the other hand, insisted that back pay was payable as ordered by the arbitrator.  The respondent’s contention is that the use of the phrase, “without loss of salary and benefits”, clearly meant that back pay and benefits should be awarded.  This point is stated with some emphasis, in paragraphs 5.1 and 5.4 of the respondent’s heads of argument.  These read as follows:

“5.1	A reading of the award will show that the respondent was to be reinstated with effect from the 7th of November 2014 without loss of salary and benefits.

5.4	The present case is clearly different in that the order for reinstatement is accompanied by the words without loss of salary and benefits. This clearly indicates in no uncertain terms that the order had retrospective effect.  The issue of retrospective application is not implied in the circumstances but same has been expressly stated.”

I find it difficult to appreciate or uphold the respondent’s contention, given the manner the arbitral award is framed.  Reinstatement is with effect from 7 November 2014.  There is no additional order for back pay and benefits, be it with effect from date of dismissal or some other specified date.

Reference was made to the case of Chegutu Muncipality v Manyora 1996 (1) ZLR 262 (S), by both parties.  The following remarks by the Supreme Court, at page 268, are instructive;

“I conclude therefore that the word “reinstate” or “reinstatement” carries no automatic retrospective connotation, either in ordinary language or in our legislation.  Normally it means simply that the person concerned will be placed again in his/her former job. If retrospectively is intended, one would normally look for additional words such as “with effect from the date of dismissal” or with effect from a particular date in the past” or “with back pay and all benefits from …(date).  In the absence of any such words, the Municipality’s interpretation was correct”

In the instant case, there is no order requiring payment of back pay from a particular date prior to the effective date of reinstatement.  It would, in my view, be wrong to read into the arbitral award what it has not provided for.  I agree with the submissions made by Ms Nyagura, at the hearing of the matter, that;

“We submit that nothing can stand on the phrase “without loss of salary and benefits”, as effective date was specified in the award, and that phrase merely means on the same salary and benefits.”

In the circumstances, the second ground of appeal must also be upheld.

The third ground of appeal is on the locus standi of Mr T Ndoro, the consultant who appeared on behalf of the respondent (then claimant) at arbitration.  The appellant averred that the consultant had no locus standi to represent the respondent at arbitration.   The appellant submitted that it in fact raised a point in limine before the arbitrator with regard to this issue.  The arbitrator simply went ahead with his determination of the matter, without ruling on the preliminary point.  The appellant insisted the consultant had no locus standi.

The respondent contended that the parties only made written submissions before the arbitrator, but did not appear in person.  For that reason, the consultant could not be said to have been improperly before the arbitrator.

The point, in my view, is that the consultant represented the claimant, at arbitration.  Whether he made a personal appearance or filed written submissions on behalf of the claimant, does not affect the representation. The arbitral award clearly shows that claimant was represented by T Ndoro and the respondent by Matsikidze and Mucheche legal practitioners.  Whether such representation was achieved by means of written or oral arguments, it seems to me, is an immaterial technical contention.  It is on record these are the persons who represented the parties before the arbitrator.

The issue raised concerns the validity of T Ndoro’s representation of the claimant.  The Labour Act,[Chapter 28:01] in section 92, provides for the representation of parties in the Labour Court.  What is stated there clearly excludes consultants.  They do not fit into the definition of “an official or employee of a registered trade union or employee organisation of which the party is a member”, as provided for in paragraph (b) of section 92.

However, the position, it seems, is not so clear at arbitration.  The provision governing representation, in the Arbitration Act, [Chapter] is not couched in terms that are as clear as those in the Labour Act.  The relevant provision, in the Arbitration Act, is Article 24 (4) of the schedule to the Arbitration Act (UNCTRAL MODEL LAW). It provides:

“At any hearing of the arbitral tribunal of which notice is required to be given under paragraph (2) of this article, or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice.” (Underlining added)

The language used in this article is wide, “any other person of their choice”. There is no basis on which to restrict representation so as to exclude consultants.  The terms of the statute simply do not permit such restriction or exclusion.  Representation in the arbitral tribunal is not as circumscribed as in the Labour Court. In the light of this, the appellant’s objection to the appearance of Mr Ndoro, the labour consultant, on behalf of the respondent, cannot be sustained.

This point, on locus standi, has however been rendered a moot point.  The appeal turns on the merits, on the basis of the first and second grounds of appeal.  These grounds, for the reasons indicated above, have been upheld.

It must be pointed out that the first ground of appeal has been allowed on the basis that no evidence was adduced to substantiate the 24 months award of damages for loss of employment.  The respondent conceded as much. This ground of appeal has not been allowed on the basis that the respondent is not entitled to any damages at all. There is therefore need for that aspect of the award to be properly attended to upon adduction of the necessary evidence from the parties.  This is the approach the Supreme Court adopted in the Ruturi case, supra, after setting aside the award. It remitted the matter to the tribunal) a quo, for it to hear evidence on damages.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 20 January 2015 be and is hereby set aside.

The matter be and is hereby remitted to the arbitrator for determination of compensatory damages for loss of employment after the parties lead evidence on the issue.

Each party bears its own costs.

Messrs Matsikidze & Mucheche, appellant’s legal practitioners

Messrs IEG Musimbe & Partners, respondent’s legalpractitioners