The Wattle Company v Evison Magarezano

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/06/16
HELD AT HARARE 2 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MC/06/16

HELD AT HARARE 2 FEBRUARY 2016				CASE NO LC/MC/16/15

& 13 MAY 2016

In the matter between:

THE WATTLE COMPANY				Appellant

And

EVISON MAGAREZANO				Respondent

Before The Honourable L Kudya, Judge

For Appellant			Mr W Makuyana (Legal Practitioner)

For Respondent		Mr I Makoshori (Trade Unionist)

KUDYA, J:

This is an appeal against a quantification order which was made by the arbitrator in favour of the respondent employee.

The background to the matter is that the respondent employee was reinstated to his former position at work with salary, benefits and back pay when a matter pitting him and appellant employer was dealt with at arbitration.  The operative part of the reinstatement order read as follows:

“I order that

Applicant reinstated with full wages and salaries from date of unfair suspension within the next 21 working days of this award.

In the event that reinstatement is not considered within 21 working days, also pay damages in lieu of reinstatement, the quantum of which parties may agree on failure which either of the parties may approach me for quantification.”

The appellant proceeded to reinstate the respondent and they both signed an

agreement which is  annexure B of the documents founding the instant appeal.  They also came up with annexure C which is a documents setting out the figures which had to be paid to the respondent as back pay.  Appellant paid part of the promised money but began defaulting on some of the payment.  This drove respondent back to the arbitrator who had made the first award.

This time around the arbitrator came up with an award in the following terms:

“I order that:

The agreement signed on 17 December be and is hereby upheld.

However in the event that the respondent breaches the agreement for a single month from date of my award, the whole balance from the agreement becomes due.

The applicant may approach me for quantification of the outstanding balance from the agreement as per item 2 of this order.

No order as to costs.”

It is this 2nd award which irked the appellant and drove it to appeal to this court.  The

basis of the appeal is that

In limine arbitrator grossly erred at law to determine a matter where he lacked jurisdiction since the parties had already agreed on reinstatement and the quantum of back pay thus rendering him functus officio.

On the merits arbitrator grossly misdirected self at law in contracting for the parties by ordering that upon breach of one instalment for the full amount when the agreement between the parties never contemplated that condition and did not contain in.   In the result appellant prayed that the arbitral award be set aside and that it be substituted with an order that the applicant’s claim be and is hereby dismissed with costs.

In response to the appeal the respondent maintained that:

Point in limine is that appeal grounds are neither on a question of law per section 98 (10) Labour Act nor based on fact that arbitrator was grossly unreasonable and outrageous that no sensible fair minded person could arrive at such a decision.

The arbitrator will never be functus officio if the matter is ancilliary or consequential upon  such an order.  Arbitral award was clear that parties could approach him for quantification.  Even if the parties had agreed on arbitral by consent was relevant for the purpose of execution if applicant failed to honour the agreement as it is currently doing so.

Arbitrator did not err in upholding that the agreement was binding that respondent will be paid on a monthly basis.  Arbitrator did not contract for the parties but cemented the binding nature of the agreement as planned by the applicant.

Arbitrator terms of reference clearly stated that it was quantification of

arbitration award and the arbitrator acted within his powers to give an order that promoted lack of breach of the award.

Point in limine

As regards this point it is apparent from the award made by the arbitrator that respondent be reinstated and that if terms were not agreed upon that parties had to revert back to him, it is clear that the reinstatement order was carried through and parties agreed on what had to be paid and how.

There was therefore no need to go back before the arbitrator since the award had been complied with to that extent.  If there was any breach of the payment terms it remained a purely enforcement issue which was now outside the arbitrator’s domain. To that extent the arbitrator did not have jurisdiction to issue yet another award as he did.  The point being well placed should succeed.

As regards the merits of the “emphasis” award (my underlining) that served no meaningful purpose.  As already indicated above what remained was an enforcement issue and it did no need any issuing of another award as the one complained about.  That award technically served no purpose than to just confuse the agreement already  entered into by the parties.  If there was any breach recourse was enforcement not a 2nd arbitral award.  The appeal is thus merited and the award should be vacated for being bad at law and serving no meaningful purpose.

IT IS ORDERED THAT

Appeal being with merit it be and is hereby allowed.

Award contested in instant case being improper it be and is hereby set aside.

Each party bears own costs.

Bere Brothers Legal Practitioners, applicant’s legal practitioners