Savanna Tobacco (Pvt) Limited v M. Sibanda and 11 Others

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/155/2013
HELD AT HARARE ON 07 MAY, 2013                    CASE NO. LC/ H/571A/2012
In the matter between



SAVANNA TOBBACO           (PVT) LIMITED       –              Appellant
And

M.SIBANDA AND 11 OTHERS                       –              Respondents’




Before The Honourable L. Matanda-Moyo, President
For Appellant      - I. Chagonda (Legal Practitioner)
For Respondents’   - G. Togara (Unionist)


MATANDA-MOYO, L.

      This is an appeal against an arbitral award ordering Appellant to pay bush

allowance to the Respondents’ for the period April 2009 to April 2010.



      The brief facts are that the Respondents were employed by the Appellant

on a 2 year fixed contract. The Appellant did not renew the contracts after the

expiration of the two years. Aggrieved by such non-renewal of the contracts,

the Respondents’ filed a complaint that their fixed contracts were unlawfully

terminated and that they were not paid their full salaries during their

employment period. The matter was subsequently referred for arbitration. The

Arbitrator found that;



   1) The termination of Respondents’ contracts were lawful;
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   2) The Appellant pay agreed bush allowances to the Respondents for the

      period April 2009 to April 2010.

   3) The parties were to approach him for quantification in the event of

      disagreement on quantum.



      The parties failed to agree on quantification and the Respondents’

approached the Arbitrator for quantification. The Arbitrator directed Appellant

to pay to Respondents a total sum of $113 337.80 as unpaid allowances.



      Aggrieved by the Arbitrator’s findings the Appellant appealed to this court

on the following grounds;


      “1) that the Arbitrator erred in law by holding that the Respondents’ were entitled to an
      allowance in terms of Collective Bargaining Agreement for the Commercial Sector
      Undertaking, which SI 45/93 is not applicable as Respondents’ were employed in the Tobacco
      Industry.
      2) That the Arbitrator erred in law in holding that the Respondents’ were entitled to an
      allowance in terms of the said SI when the SI does not provide for such allowance.
      3) That the Arbitrator erred in holding that the Respondents were entitled to USD 25.00 a day
      when there was no agreement to that effect and
      4)That the Arbitrator erred in law in failing to appreciate that during the period in question it
      was illegal to pay US dollars as it would contravene the Exchange Control Act.’’



The Appellant prayed that the decision of the Arbitrator be set aside in total.



      Appellant submitted that the Respondents’ lodged their claim in terms of

Statutory Instrument 45of 1993. Such Statutory Instrument is the Collective

Bargaining Agreement for the Commercial Sectors Undertaking. On page 30 of


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the record under the ‘Arbitrator’s Analysis’ Arbitrator concurred with the above

submission. He wrote;


      “the Arbitrator concurs with the Respondent(Appellant herein) because the Claimants
      (Respondents herein) belonged to the Tobacco Industry and not the Commercial Industry and
      as such the claimants should use the relevant Statutory Instrument to make their claim.”



      Having made such a finding the Arbitrator was enjoined to dismiss the

claim by the Respondents’.           The Respondents’ according to the Arbitrator’s

findings based their claim on a wrong statutory instrument and such claim

could not stand.



      I agree with Appellant’s submissions that the Arbitrator then fell into

error by proceeding to order parties to go and agree on a bush allowance. Such

a determination is flawed. Even at quantification stage the Respondents’ based

their claim on Statutory Instrument 45 of 1993. On page 15 of the record which

is Respondent’s claim in paragraph 3 the Respondents’ wrote;


      “During the subsistence of their contracts of employment the Applicants were not paid their

      bush allowance in terms of Statutory Instrument 45 of 1993”



      The Respondents’ continued to base their quantification on Statutory

Instrument 45 of 1993. The Arbitrator had already made a finding that such

statutory instrument was not applicable. The Respondent had therefore no

basis to seek quantification on a statutory instrument already held to be

inapplicable. Again the Arbitrator erred in proceeding to make a quantification

based on Statutory Instrument 45 of 1993.


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      The Respondents’ conceded that the Arbitrator made such a ruling and

they admitted they did not appeal against such ruling.



Accordingly the appeal succeeds and the Arbitrator’s decision is hereby set aside

with no order as to costs.




Atherstone and Cook – Appellant’s Legal Practitioners

Private Security Workers Union- Respondents’ Representative




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