United Builders Merchants v Edward Muzondo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/817/14
HELD IN HARARE, 1ST OCTOBER, 2014
CASE NO. LC/H/1051/13
AND 19th DECEMBR, 2014
JUDGEMENT NO. LC/H/817/14
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/817/14

HELD IN HARARE, 1ST OCTOBER, 2014                     CASE NO. LC/H/1051/13

AND 19th DECEMBR, 2014

In the matter between

UNITED BUILDERS MERCHANTS		Appellant

And

EDWARD MUZONDO				Respondent

Before The Honourable P. Muzofa:	Judge

For Appellant     :	E. Donzvambeva (Legal Practitioner)

For Respondent  :	P.G. Mutasa (Trade Union Representative)

MUZOFA J.,

Respondent raised a preliminary point at the hearing of this appeal, that the United Builders Merchants (UBM) has dirty hands as it failed to comply with the arbitral award issued against it.

The award by the Arbitrator was couched in the following terms;

“………… Claimant is to be reinstated to his position with full pay and benefits with effect from the date of dismissal. Respondent is at liberty to reinstate disciplinary proceedings in a procedurally fair manner. If reinstatement is no longer possible parties are to negotiate for damages (sic) in lieu of reinstatement failure to which either party may approach the Arbitrator for quantification of damages. This award is to be complied with within 30 days of receiving it.”

The award is dated 15 November 2013. The Appellant filed this appeal on 20 December 2013. Section 92 E (2) provides that an appeal shall not have the effect of suspending the decision appealed against. In casu then despite noting the appeal the order of the Arbitrator was still operational.

The order effectively provides for reinstatement. It was submitted for the Appellant that it was for the Respondent to avail his services the employer has no obligation to look for the employee. The Court was not referred to any law in support of this proposition. Respondent submitted that it is the employer’s duty to advise the employee on issues of reinstatement the Court was referred to the case of Isaac Mukwinya v Clan Transport (Pvt) Ltd. SC 47/2001 for this proposition. In that case MC NALLY JA (as he then was) had this to say on page 2 of the judgment.

“The question whether he did or did not present himself is, to my mind, of no consequence. Clan had a positive duty to reinstate him. The onus was on it to make the first move. It is quite apparent that if it had written him a letter advising him to report for work he would have done so.”

I am persuaded by this finding.  An inference can be drawn from Section 89(2) (5) (ii) that an employer has the last decision as to reinstate or not to reinstate. In my view the order for reinstatement is directed to the employer. This is so because reinstatement involves administrative considerations, it impacts on other issues for instance where another person had been engaged in the place of the employee. To reinstate is to “put back” as such an employee cannot reinstate himself. It was therefore upon Appellant to reinstate the Respondent, it had a positive duty to reinstate Respondent by making the first move.

Having disposed of that issue I would want to address the Appellant’s alternative submission. It was submitted that the order provided for either party to approach the Arbitrator for quantification of damages. The lapse of thirty (30) days as provided by the order was enough evidence that reinstatement was no longer tenable. In my view this argument is not tenable. Appellant had an obligation to reinstate but failed to do so. It also had an obligation to approach the Arbitrator for quantification of damages. It also failed. In essence both parties neglected to take forward the issue of quantification and this cannot be used to the detriment of the Respondent only. This argument does not take Appellant’s case any further.

This Court has noted a very disturbing trend particularly by employers in relation to the dirty hands principle. The Labour Act (Act) clearly provides that an appeal does not suspend the decision appealed against. The law did not leave the litigant at the mercy of the ‘award’ so to speak. There is a provision where the employer can utilise to temporarily stay the operation of the award. Where an employer blatantly ignores utilising the provisions of subsection (3) of Section 92 E of the Act. I do not believe it deserves the protection of this Court. If an employer does not wish to comply with an arbitral award it is at liberty to apply for stay of execution. Where this is not done, the employer has dirty hands.  This Court cannot condone such conduct. If the Appellant intends to utilise its rights of appeal as provided in the Act, it must be ready to comply with the other Sections of the Act.

In light of the above, clearly the Appellant is improperly before the Court therefore the preliminary point should succeed.

The preliminary point is upheld.

The appeal is struck off as it is improperly before the Court.

There is no order as to costs.

Wintertons – Appellant’s legal practitioners