SOS Hermann Gmeiner High School v Lazarus Mudzingwa & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/299/2016
HARARE, 8 FEBRUARY 2016 &
CASE NO LC/H/REV/117/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/299/2016

HARARE, 8 FEBRUARY 2016 &			         CASE NO LC/H/REV/117/2015

13 MAY 2016

In the matter between

SOS HERMANN GMEINER HIGH SCHOOL			  APPLICANT

Versus

LAZARUS MUDZINGWA						 1ST RESPONDENT

And

NEVER PAWARINGIRA						 2ND RESPONDENT

And

HON S NEHOHWA							 3RD RESPONDENT

Before the Honourable D L Hove J

For the Applicant	T Ndoro (Trade Unionist)

For the Respondents   S Chihombe (Trade Unionist)

HOVE J:

The issues that fall for determination in this case were two and these were:

Whether or not the arbitrator had jurisdiction to deal with the dispute. The dispute being whether or not the National Employment Council for the welfare and educational institutions (NECWEI) had jurisdiction over the matter; and

To determine whether or not the applicants were being underpaid from July 2013 to date.

The first term of reference, raising the issue of jurisdiction shows that the basis upon which jurisdiction was being challenged was that there was a dispute as to which employment council the employees fell under.

The employees argued that the appellant is under SOS Zimbabwe and as such it falls within the ambit of NECWEI.

The (employer or) applicant argues that where there is a dispute regarding the classification of an industry, that dispute must in terms of section 46 of the Labour Act [Chapter 28:01], be dealt with by the Labour Court. The section provides that:

“(46)	In the event of any dispute as to—

the extent or description of any undertaking or industry; or

….

The matter shall be referred to the Labour Court for determination.”

It was further argued that it was wrong for an official from NECWEI to conciliate the dispute of whether or not they had jurisdiction since they were an interested party. They were likely going to be biased and decide in their own favour. Further it was not proper to send the matter to an NECWEI arbitrator to decide whether or not the employees fell under NECWEI as the likelihood of bias could not be ruled out since the arbitrator would be an interested party.

It has not been disputed that NECWEI is indeed an interested party. As the dispute involves whether or not the employees fall under NECWEI or they fall under the National Employment Council for Schools Development Associations.

The arbitrator being a NECWEI arbitrator could not sit in judgment over his own cause. The likelihood of bias cannot be ruled out. A neutral authority, one with no interest in the cause had to decide that issue.

The appellant need not prove that there was actual bias. See in this regard the case of Bailey v Health Professions Council 1993 (2) ZLR 17 (3). The court stated that:

“Accordingly, having ascertained the relevant circumstances, the court should ask itself whether having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question. In the sense, that, he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him. He stresses that by ‘real danger’ he meant a real possibility rather than a real probability of bias.”

In casu therefore, the court should enquire whether there existed a real danger of bias on the part of the arbitrator (who was a NECWEI official) in the sense that he may unfairly regard with favour the case of NECWEI. I believe there was real danger of bias in the circumstances of this case because an official of NECWEI was sitting in judgment over its own cause.

The matter ought to have been referred to the Labour Court in terms of section 46 (a) to establish the extent of NECWEI i.e. whether the employees fell under its ambit. If an independent authority then establishes whether or not NECWEI had jurisdiction, then the matter can then be referred to the employment council with jurisdiction over the matter.

The application for review must therefore succeed.

The following order is made:

The arbitral award is set aside.

The matter is to be referred to a different judge of the Labour Court to decide whether or not the employees fell under NECWEI.

Each party will bear its own costs.