Tongogara Rural District Council v Oripa Mukaratigwa

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THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/246/24
HARARE 20 MARCH ,2024
CASE NO. LC/H/51/24
AND 06 JUNE, 2024
In the matter between: -
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THE LABOUR COURT OF ZIMBABWE
HARARE 20 MARCH ,2024

AND 06 JUNE, 2024
In the matter between: -

Tongogara Rural District Council

Appellant

Versus

Oripa Mukaratigwa

Respondent

Before the Honourable L. Hove, Judge:

For Appellant : Mr .M. Mavhiringidze

For Respondent : Mr. T. E. Mudzuri

HOVE J:

This is an appeal against an arbitrary award handed down on 20 December 2023.

Background facts

The appellant employed the respondent as an expenditure clerk from July 2000. She was a grade seven employee in February 2018, the appellant was assigned to do grade nine duties. Her pay and other benefits however remained at those of a grade 7 employee.

The respondent brought a claim against the appellant alleging that the appellant had failed and or neglected to pay her an acting allowance. The issue referred to the arbitrator was therefore that of alleged nonpayment of an acting allowance.

The terms of reference before the arbitrator were 3 to wit;

1. whether or not the claimant is entitled to an acting allowance
2. if so, how much and for which period.
3. to determine the issue of cost

The appellant was dissatisfied with the arbitral award and noted an appeal to this court against the whole of the arbitral award.

The grounds of appeal are 4 viz

1. The Honourable arbitrator erred and misdirected herself in law by awarding the respondent minimum salary for grade 9 for 2 years which was outside her terms of reference and not claimed by respondent.


2. The honourable arbitrator misdirected herself in law by asking the parties to come back for quantification in circumstances where the terms of reference called upon her to determine quantum at first instance.

3. The honourable arbitrator erred and misdirected herself in law by finding that the respondent was performing duties of a grade 9 in circumstances where no evidence was put before her to support the finding.

4. The honourable arbitrator erred and misdirected herself in law by not determining at all the claim that was before her, which that of acting allowances and ended up creating a new claim for respondent and granting it.

In a judgement issued by this court in the same matter, the court struck out grounds of appeal numbers 2 and 3 for being improperly before the court. This left only grounds of appeal numbers 1 and 4 which the court found to be properly before the court.

The first and fourth grounds of appeal allege that the arbitrator erred and misdirected herself by departing from the terms of reference and ended up creating a new claim for the claimant, something which had not been claimed by the respondent. These two grounds raised the same issue and will be considered together as follows;

Whether or not the arbitrator departed from her terms of reference

The record shows that the claim brought before the arbitrator was that of nonpayment of an acting allowance. The terms of reference merely required the arbitrator to decide whether or not acting allowance was payable and if it was payable the arbitrator was to decide over what period it would be paid. This was in view of the point taken that part of the claim had prescribed.

The arbitral award however did not award an acting allowance but awarded a grade 9 salary for two years. The arbitrator therefore departed from the terms of reference by awarding a grade 9 salary instead of considering whether or not an acting allowance should be payable.

The operative part of the award is that;

“I order that the claimant was working as a grade 7 employee and performing work in occupations listed in grade 9, that claimant be paid the minimum salary prescribed for a grade nine employee.

I order that parties may agree on the quantum to be paid to the claimant from June 2021 to June 2023 if parties fail to agree parties are free to approach this tribunal for quantification.

I further order that each party will bear its own cost.”

The award, is a clear departure from the terms of reference that required the arbitrator to decide on whether or not an acting allowance should be paid. The respondent’s claim was not for a grade 9 salary but for an acting allowance.

The argument that arbitral awards should only be interfered with, ‘where the concept of justice in Zimbabwe would be intolerable hurt by such the award’, as was stated in **Zesa v Maphosa 1999 (2) ZLR 452**, can only be applicable where the arbitrator has not totally misunderstood the issues before him or her. In casu the arbitrator totally misdirected herself by not determining the issues placed before her, that of an acting allowance and ended up awarding what was not sought by the respondent.


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In the case of Zimbabwe Schools Examination Council v Mukomeka & anor SC 10/20 the Supreme Court quoted with approval the South African case of Director of Hospital Services v Ministry 1979

(1) SA 626 (A) where the court stated that;

“It is also trite that a court is ordinarily not at large to grant relief which has not been sought by applicant. The court cannot exceed its mandate to determine the issues placed before it by the parties through their pleadings and evidence or mero moto grant orders not sought by either party without obtaining the parties’ views on those orders.”

The arbitrator in casu awarded the respondent a minimum salary of a grade 9 employee for two years which was not claimed by the respondent. Respondent had claimed an acting allowance grounds of appeal 1 and 4 are therefore meritorious.

I therefore find that grounds number 1 and 4 have merit for it is settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his or her own and determining issues not pleaded or raised by the parties constitutes a fatal irregularity. While reference is made her to judicial officers, arbitrators are included in this trite principle of law in the case of Inter-Agric (Pvt) limited. Mudavhanhu and ors SC 9/15 the Court held that

“In addition, at law the arbitrator was only competent to determine the dispute between such parties as had been referred to him thus he was confined to his terms of reference he had no mandate beyond that which had been referred to him.”

See also Chiwenga v Mubaiwa SC 86/20.

Disposition

The misdirection by the arbitrator constitutes a fatal procedural irregularity and the court orders as follows.

Order

1. The instant appeal succeeds with each party bearing their own cost
2. The decision of the honorable arbitrator is set aside and substituted with the following,

“The matter be and is hereby remitted for arbitration denovo before a different arbitrator.”


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