Takudzwa Gondokondo v Innscor Africa (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/599/2016
HARARE, 22 JUNE 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/599/2016

HARARE, 22 JUNE 2016			     	      CASE NO. LC/H/APP/326/16

AND 7 OCTOBER 2016

In the matter between:-

TAKUDZWA GONDOKONDO					Applicant

And

INNSCOR AFRICA (PVT) LTD					Respondent

Before Honourable L. Kudya, Judge

For Applicant	W. Gumbura (Unionist)

For Respondent	Mrs T. Manjonjo (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for quantification of damages arising from an order of 16 October 2015 where the Labour Court ordered that the labour matter pitting the applicant and the respondent employer be heard de novo at arbitration after it was observed that the arbitral award had been a terse award divorced from the shop floor proceedings in the matter.

On the hearing date it dawned on the court that there was an administrative challenge as the operation of the court’s order of 16 October 2015.  This was so because the duty to re-hear the matter was placed on the arbitrator’s shoulders and no mechanism was prescribed in the order as to how that could be achieved in terms of who should set in motion the re-hearing.

The employee contended that it was the employer whilst the employer contended that since the order was silent in that aspect it could therefore not be held liable for what it was not mandated to do.  It ended up suggesting that the practical challenge be devilling the case could at best be a case of an order crying for correction to plug the holes which have given these to the problems not attendant on the matter.

It is the practical niceties of the judgment which prompted the court to ask both parties to address it on whether the quantification was properly or prematurely before it.  It is only this aspect which is addressed by this judgment.

For the employee it was argued that since at inception of the matter only the employee and employer were involved in the matter it means that the duty to initiate de novo arbitral proceedings rested with the employer.  He argued that to the best of his understanding the employer only sought to engage the de novo hearing gear when he had already filed his quantification claim, which claim caused the arbitrator then seized with the matter to do the de novo hearing to rule that he had no jurisdiction to dealt with the matter as there was now a pending Labour Court quantification claim hence the lis pendens doctrine would estopp him from complying with the order of 16 June 2015.

The employee was adamant that on account of the 3 month operative period he was within his rights to demand that his matter be quantified as he genuinely believes that the employer lost the case once the 3 month re-hearing period had prescribed.  He therefore prayed that the court hold that his application is properly before the court and that it accordingly be entertained.

On the other hand, the employer was adamant that the de novo hearing duty rested with the arbitrator and the arbitrator’s sins could not be visited on it as it was not the author of the delay in the satisfaction of the de novo hearing order.  In the result the respondent prayed that the quantification application be struck off the roll for being prematurely before the Labour Court.

It is important to observe that both parties’ arguments are well placed in so far as they realise the fact that the compliance with the de novo order was an administrative tribunal function.  Even as the applicant argues that the respondent was duty bound to set the de novo motion it is important to note that such would as far as it goes. The practical satisfaction of that order lay squarely within the administrative capabilities of the arbitral tribunal.

That having been said it would then make a mockery of the order to impute the net defaulting effects of the de novo order on the respondent.  This is so because as observed above the full compliance of that order lay with the arbitral tribunal and not with itself.  The court is therefore in agreement with the respondent when it argues that the instant application is prematurely before the court.  Equally the court finds no fault with the arbitral decision that when the quantification claim was before the Labour Court the arbitrator could not proceed to do the de novo hearing.

What is clear from the 16 October 2015 judgment is that its enforceability remains in the arbitral domain and only after shortcomings observed by the court in that judgment have been addressed it is only then that effective relief can low from it.

The paragraph referring to reinstatement upon failure to do de novo hearing within months becomes only of academic  importance as it is not possible to be satisfied at the instance  of either party to the action but rather at the instance of a 3rd party which is the arbitral tribunal.

In the court’s view the pragmatic remedy is to strike off the quantification claim on the basis of it being prematurely before the court and a remittal of the main matter to arbitration for compliance with the 16 October 2015 order but with the modification that the de novo hearing be done within a reasonable time depending on the arbitral tribunals disposition.

IT IS ORDERED THAT

Quantification application being prematurely before the court it be and is hereby struck off the roll. The matter giving rise to the quantification claim is remitted to arbitration to be reheard by another arbitrator within the terms of the 16 October 2015 order but now with the qualification that such de novo hearing be done within a reasonable time according to the arbitral tribunal’s administrative capacity.  Each party bears own costs.

Lunga, Gonese Attorneys, respondent’s legal practitioners