Takudzwa Gondokondo v Innscor Africa (Pizza Inn) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/49/2021
HARARE, 29 MARCH 2021 &
21 MAY 2021
CASE NO LC/H/APP/297/19
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/49/2021

HARARE, 29 MARCH 2021 &			   CASE NO LC/H/APP/297/19

21 MAY  2021

In the matter between:-

TAKUDZWA GONDOKONDO			APPLICANT

And

INNSCOR AFRICA (PIZZA INN) LIMITED	RESPONDENT

Before the Honourable Kudya J

For the Applicant		Gumbira  (Union)

For the Respondent		Pickup (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for quantification of damages due to the applicant employee following a labor dispute pitting him and the respondent employer.

On the hearing day the respondent raised a point in limine to the effect that the matter was res judicata and prayed that it be struck off the roll.  It is only this point in limine which is discussed by this judgment.

The background to the matter is that parties found themselves before the labor court following a labor dispute between them.  A point in limine at the appeal level was raised. The point was to the effect that the arbitrator had dealt with the matter without considering vital evidence which had been led at the shop floor level.

The point was allowed and the court ordered a denovo hearing before a different arbitrator.  The denovo hearing had to be done within 3 months of the denovo order failing which the employee would be deemed to be reinstated.

There was no compliance with the denovo order. Such non compliance prompted the parties to appear before the court again.  After hearing submissions from the parties the court admittedly erroneously ordered that the order speaking to 3 months compliance be altered to read that compliance be within a reason able time. This conclusion was arrived at by the court after it realised that it was not within the powers of either the employer or the employee to ensure that the denovo hearing was held within a prescribed time frame. Again the arbitrator did not comply to date. The non compliance by the arbitrator prompted the employee to apply for quantification of damages.  His argument was that on account of the deeming clause in the appeal judgment he was to that extent reinstated and the failure to reinstate him in his view thus meant he had top be paid damages. The quantification application was thrown out by the court on account of it being prematurely before the court since the arbitrator had not complied with the denovo order. In the  court’s view therefore no proper quantification could take place on the matter. The employee has come back again now seeking quantification citing the fact that the order deeming his reinstatement was still standing and had not been appealed. In his view therefore it is just for the court to proceed to quantify his damages.

The employer is opposed to the quantification relief and to that extent raised the preliminary point which is the subject of this judgment. The employer contends   that the matter is res judicata since nothing has changed about the denovo hearing. In its view it would thus not be proper to deal with the quantification claim which was previously struck off the roll.

In response the employee is adamant that his plea is well suited taking into account the deeming judgement and the judgment which erroneously sought to amend the denovo time lines. His view is that the court erroneously qualified the deeming judgment to his detriment.  In his view quantification should therefore proceed on the basis of the deeming judgment.

The court concedes that the qualifying judgment should have been  birthed by first  invoking See  92(c) labor court Act on alteration of judgment.  It further concedes that the Supreme Court has now made it clear that it is not the labor  court’s business to include in its disposition of a matter the deeming clause  as that is not within the powers of the employee or the employer to see to the adjudication of the matter by the arbitrator.

Whilst the flaw about the qualifying judgment is regretted it does not detract from the fact that indeed this court has already disposed of the quantification plea based on the non compliance by the arbitrator.  To that extent whether on account of the deeming judgment or on the qualifying one the court has no basis to entertain the quantification plea given the set of facts prevailing in the matter.  The court is therefore satisfied that the point in limine on res judicata is well taken and it should succeed. The matter being improperly before the court should therefore be struck off the roll.

IT IS ORDERED THAT

Application for quantification of damages being improperly before the court on account of it being res judicata it be and is hereby struck off the roll.  Each party bears own costs.