UZ-UCSF Collaborative Research Programme v Isdore Husaihwevhu & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/161/14
HELD AT HARARE 24TH FEBRUARY 2014
CASE NO
JUDGMENT NO LC/H/161/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/161/14

HELD AT HARARE 24TH FEBRUARY 2014	       CASE NO LC/H/158A/10

& 28TH MARCH 2014

In the matter between:-

UZ-UCSF COLLABORATIVE				Appellant

RESEARCH PROGRAMME

ISDORE HUSAIHWEVHU & ANOTHER			Respondent

Before the Honourable B.S. Chidziva, Judge

For Appellant		Mr H Mutasa (Legal Practitioner)

For Respondent		Ms N.R. Timba (Legal Practitioner)

CHIDZIVA, J:

The Appellant is appealing against the decision of Honourable Arbitrator R Matsikidze which was handed down on the 9 December 2009.  The award is couched as follows

“My award is as follows

The Respondent be and is hereby ordered to pay Mr I Usaihwevhu a total sum of $94 920.00 as salary and benefits arrears less Statutory deductions.

The Respondent is ordered to pay Mr I Usaihwevhu a salary of YS$2 800.00 per month with effect from 1 November 2009 and US$420.00 as total benefits per month from 1 November 2009 to the date the contract will be lawfully terminated.

The Respondent be and is hereby ordered to pay Mr W Mutowo the total sum of US$46 818.78 as salary and benefits arrears less Statutory deductions

The Respondent be and is hereby ordered to pay Mr W Mutowo

US$1 418.42 as salary per month with effect from 1 October 2009 to date of lawful termination of contract.

The Respondent be and is hereby ordered to pay F Zinyamathe total sum of US$55 118.48 as salary and benefits arrears less Statutory deductions.

The Respondent be and is hereby ordered to pay US$1 667.73 to F Zinyama as salaries per month and US$250.16 as total benefits per month until the lawful termination of contract.

Cost be borne equally.

The brief facts of the matter are that

Appellants are former employees of the Respondent.  Around June 2006 all the Respondents’ contracts of employment expired and Appellant did not renew them.  The matter ended up before Arbitrator Mutongoreni after the Respondent had failed to renew the contracts.  Appellants are appealing  against this award which was made in favour of the Respondents.  The Respondents applied for quantification and Honourable R Matsikidze ruled in their favour on the 9th of December 2009.  It is this award that the Appellant is appealing against.

The grounds of appeal are as follows

The arbitrator erred in law in finding that Respondent’s contract of employment are still subsisting and subsequently awarding Respondents’ salaries and benefits.

The arbitrator erred in law in awarding twenty four (24) months salary and benefits as damages in favour of

1st  Respondent.

The arbitrator erred in law in awarding twenty six (26) months salary and benefits as damages in favour of 2nd Respondent

The arbitrator erred in law in awarding thirty one (31) months salary and benefits as damages in favour of 3rd Respondent.

The Appellant therefore prayed that the award should be set aside and

substituted with the following:

“All Respondents be and are hereby awarded six (6) months salary each as damages.”

The Respondent in response has told the court that:

Appellant has approached the court with dirty hands because they have not applied for the suspension of the arbitral award.

The contracts have not been terminated hence they are still valid

The grounds of appeal do not satisfy the requirements of section 98 (10).

It is common cause that

the Applicants were employed by the Respondent.

the contracts were eventually terminated.

the matter was taken before Honourable Arbitrator NA Mutongoreni who ruled in the favour of the Respondents.

Honourable Matsikidze in his judgment stated that

“I shall proceed to look at the arbitral award and determine whether Applicant complied with the Arbitrator’s ruling.”

What is to be decided is whether the Honourable Arbitrator erred at law as alleged or not.  In his judgment he stated that

“The question I need to ask myself is what did the Labour Court rule in this particular case.  Clearly from the paragraph quoted above, the Labour Court made it clear that these employees remain employees of the Respondent “until their contracts were lawfully terminated.” The answer is no.  In that regards my hands are tie. I cannot alter the judgment of the Labour Court.  What I can simply do is to interpret or effect its meaning.  In that view my task will be to determine salaries and benefits up to the date of lawful termination.  I have no powers to alter the judgment of a Superior Court whose decisions are binding on me.”

The paragraph referred to in the Labour Court judgment stated that

“Otherwise Respondents continued to be under Applicant’s employment until their contracts were lawfully terminated.”

The Honourable Arbitrator rightly found that

the contracts of employment were not lawfully terminated hence the quantification that he made.

he also  rightfully found that Mr Usaihwevhu should have mitigated the loss hence he should get salaries less what he was paid by Population Services.

In the circumstances therefore thiscourt finds that the appeal

lacks merits.

Accordingly it is ordered that

The appeal be and is hereby dismissed with costs.

Gill, Godlonton & Gerrans, applicant’s legal practitioners

Kantor & Immerman, respondents’ legal practitioners