Roy Stone Kuseni v Cripps Road Service Station

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/175/2013
HARARE, 9 MAY 2013
CASE NO. LC/H/34/2013
JUDGMENT NO.LC/H/175/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/175/2013

HARARE, 9 MAY 2013				CASE NO. LC/H/34/2013

In the matter between

ROY STONE KUSENI				-		Appellant

And

CRIPPS ROAD SERVICE STATION		-		Respondent

Before The Honourable B.T. Chivizhe: President

Appellant 		-	In Person

For Respondent	-	Mr M. Chijara – (Legal Practitioner)

Kuhuni and Attorneys

CHIVIZHE, B.T.:

The appeal was noted as against an arbitral award handed down on an unspecificied date the operative part of which reads as follows;

“4.1 This matter was resolved at the conciliation level.  It should never have been brought to arbitration.  Entertaining the complainant is an abuse of the dispute resolution system.  I have no mandate to overturn an agreement that was entered by parties willingly.

4.2 Accordingly, this case is dismissed in entirely.  Parties must abide by the agreement entered on 16 November, 2011.”

The Appellant was employed by the Respondent as a clerk at Respondent’s establishment.  He resigned from employment on the 1st of October, 2011.  Thereafter the Appellant approached the National Employment Council for the Motor Industry with a claim for underpayment of wages, wrong grade and leave days.  The matter was thereafter set down for conciliation on 10th of November, 2011.  The Designated Agent presumably after hearing the parties then issued two certificates.  The first was a Certificate of Settlement dated 16th November, 2011.  The parties had reached agreement the following issues;

The employer shall pay the outstanding 10 leave days worth 131 United States Dollars.

The employer shall pay 337 United States Dollars to cater for the underpayments for the period of May 2010 to September 2011 using the counter salesman Grade 5 salary on the 21st of December, 2011.

Both parties appended their signature to this document on the same date.  It is common cause the Respondent subsequently made payments in terms of the Certificate of Settlement.

The Designated Agent however also issued a Certificate of No Settlement on the same date that is 16th November, 2011.  She then completed Form L.R. 4 which is a reference to Arbitration of the matter.  The issue to be arbitrated upon was “to determine whether complainant was a store man or a counter sales man?”  The matter was consequently set down for hearing before the Arbitrator on the 21st of November, 2011.  At the hearing the Arbitrator without even delving into the merits of the matter declined jurisdiction.  His reasoning was that as the matter had been resolved by a certificate of settlement signed by both parties the matter should not have been brought before him.  He then issued an award as reflected supra

Dissatisfied the Appellant has noted an appeal against the arbitral award.  The appeal has been noted on the following grounds;

The Honourable Arbitrator erred and misdirected himself by classifying me under grade 5 counter-salesman whereas in truth and in fact I was a grade 7 sales representative.

The Honourable Arbitrator erred and misdirected himself on the law by ruling that the deed of settlement signed by the parties on 16 November 2011 is valid and binding whereas in truth and in fact the Appellant was misled into believing that a proper grade had been entered into the Deed of settlement.

The Honourable Arbitrator should have heard evidence on the circumstances surrounding the signing of the Deed of settlement by the parties.  The Arbitrator therefore misdirected himself by dismissing the Appellant’s claims without holding any due enquiry on the issue.

The Honourable Arbitrator therefore misdirected himself by holding that the dispute between the parties had been resolved at conciliation level.

The Respondent has taken a point in limine that the appeal as noted does not raise questions of law as provided in Section 98 (10) of the Labour Act [Chapter 28:01]  The Appellant being a self-actor did not file any response to the point.  Although the grounds of appeal as couched do not specifically raise questions of law I am however satisfied that ground of appeal number 3 does refer to a serious misdirection on the facts as to amount to a misdirection in law.

It is very clear from a reading of the facts in the record the Designated Agent issued both a Certificate of Settlement and a Certificate of No Settlement.  The parties have given explanations that are at tangent as to how the Designated Agent issued two certificates.  The Appellant explained that the Designated Agent issued a Certificate of Settlement between the parties.  In so doing he was aware that there was a dispute between the parties as to his proper grading.  As a way of resolving the matter temporarily the Arbitrator then endorsed that the employer pay the Appellant underpayments using the grade 5 for a counter salesman.  This would enable Appellant to be paid in the mean time.  The Arbitrator however referred the matter of the proper grade to arbitration as she had failed to resolve it.

The Respondent version is that the parties reached settlement.  The agreement was that the Respondent would be paid in line with Grade 5.  The

Certificate of Settlement recorded that agreement.  The Respondent suggests that the matter was then inexplicably referred for arbitration.  The Arbitrator had then declined jurisdiction on the basis that a Certificate of Settlement had been signed by the parties.  The Respondent agreed with the Arbitrator’s finding that the Appellant having appended his signature to the certificate of settlement thereby signifying acceptance of these terms the Appellant was bound by these terms.  He could not turn around and claim he was not aware when he signed that the grade used was grade 5.

I am satisfied that the Appellant’s explanation of the events is more in accordance with reason.  Section 93 of the Labour Act provides for powers of Labour officer to upon failure to conciliate refer mater to arbitration.  If however the matter is settled by conciliation the Labour officer shall record the settlement in writing.  It is clear in casu the designated officer issued a Certificate of No Settlement in addition to a Certificate of Settlement.  In issuing a Certificate of No Settlement he referred to arbitration the one point “to determine whether complainant was a store man or a counter sales man”.  The Respondent clearly cannot claim ignorance as to how the matter ended up before the Arbitrator.

The matter having been referred to him in terms of Section 93 of the Act it was not proper in my view for the Arbitrator to then decline jurisdiction as he did.  A matter having been referred to him with two certificates one of which was a Certificate of no Settlement the Arbitrator at least ought to have established initially the background of the matter.  It was not open to him to refer only to the Certificate of settlement and disregard the Certificate of No Settlement as if it was not there.  The Arbitrator clearly misdirected himself on the facts of this matter.  He wrongly concluded that the matter had been definitely resolved by a Certificate of Settlement when clearly there was an outstanding issue that had been captured in the Certificate of no Settlement.  Such misdirection on the facts clearly amounts to a misdirection in law.  See National Foods Limited vs Stewart Mugadza SC 105/95.

In the circumstances the award handed down by the Arbitrator cannot stand.  The matter has to be remitted back to the same Arbitrator for him to address the issues as referred to him by the Designated Agent.

The Appellant in his papers had prayed for the following relief;

“That the Deed of settlement signed by the parties on 16 November, 2011 be and is hereby set aside and that the parties be and are hereby ordered and directed to sign another Deed of settlement before the Designated Agent for NEMI which cites the Appellant’s grade correctly as grade 7 sales person or representative.”

That relief is however not available to the Appellant.  It is clear from the facts in the record that the Appellant knowingly and freely signed the Certificate of Settlement for him to be paid using the grade 5.  The Court like the Arbitrator cannot accept Appellant’s lame explanation that when he did append his signature to the Certificate he was not aware of the contents thereof.  The caveat subscripto rule clearly applies in this case.  The rule provides who that whoever signs a contractual agreement signifies his assent to the contents of that agreement.  He cannot turn around later and denounce the agreement if he finds that the agreement is no longer to his liking.  The general principle of the law is that the person is bound and has no one to blame but himself.

The Arbitrator’s mandate therefore is only to determine Appellant’s proper grade at the material time.  Having determined the issue he can either dismiss the matter should he find that the Appellant’s claim is unfounded.  In the event that he finds Appellant’s proper grade was higher than grade 5 his award should reflect that the Appellant be paid outstanding payments by calculating the difference between the appropriate grade and grade 5 already awarded by the Designated Agent and paid out.

It is accordingly ordered as follows;

The appeal be and is hereby allowed

The arbitration process held on 21 June 2012 and the consequent award handed down on an unspecified date be and are hereby set aside.

The matter is remitted back to the Arbitrator for a re-hearing and determination of the issue referred to him by the Designated Agent on the 16th of November, 2011.