Vengai Mupariwo & 5 Others v CPL (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/166/2014
HARARE, 14 & 28 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/166/2014

HARARE, 14 & 28 MARCH 2014		           	           CASE NO. LC/REV/H/83/13

In the matter between:-

VENGAI MUPARIWO & 5 OTHERS				Applicants

And

CPL (PVT) LTD							Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicants		Mr. M. Chimhuka (ZGWU)

For Respondent		Mr. T.A. Chiurayi (Legal Practitioner)

MAXWELL J:

This application for review was filed on 30 September 2013.  The grounds for review are;

In hearing and determining the matter before her, the Honourable Arbitrator demonstrated that she was motivated by malice.

There was gross irregularity in the proceedings, more particularly in that the Arbitrator invoked the wrong Statutory Instrument.

There was violation of the rules of natural justice, more particularly the audi alteram parten.

Applicants prayed for the setting aside of the arbitral award and for the matter to be remitted for a hearing de novo.

The background to the matter is given in the Respondent’s heads of argument.  The Applicants are the Respondent’s former employees who were engaged on fixed term contracts.  When the Respondent did not renew the Applicants’ fixed term contracts, the Applicants claimed that they had been unlawfully dismissed and referred the matter to the Ministry of Labour.  The parties did not reach a settlement and the matter was referred to compulsory arbitration.  The hnourable Arbitrator found in favour of the Respondent resulting in the Applicants filing this application.

From Applicants’ submissions ground of review 1 and 3 arise from the allegation that the parties were not given the right to be heard fully.  These will therefore be dealt with at the same time.  Applicants submitted that the parties appeared before the Arbitrator.  During the oral hearing a critical issue was raised which required them to file supplementary submissions.  Applicants allege that the issues raised were supposed to assist in concluding the matter.  Applicants filed their supplementary submissions and supporting documents.  The Respondent had been given seven days within which to file any response if it so wished.  Respondent did not file any response and after the seven days the Arbitrator proceeded to conclude the matter and made the award.  Applicants complain that the Arbitrator should have waited for the Respondent’s submissions regardless of the fact that they were out of time.  They argue that they had not pressurized the Arbitrator to complete the matter therefore his doing so without any pressure and without the Respondent’s submissions is the basis for the allegation of malice.  They also allege that by not waiting for the Respondent’s submissions the audi alteram parten rule was violated.

Respondent provided case authority that aptly provides what is to be considered in assessing whether or not there was malice on the part of the Arbitrator.  Respondent submitted that the Arbitrator acted above board.  In the case of Bailey v Health Professions Council of Zimbabwe 1993 (2) ZLR 17 the Court referred to the case of R V Gough [1993] 2 ALLER 724 in which the test for bias was set out.  In that case LORD GOFF at pp 737-738 concludes as follows:

“Accordingly, having ascertained the relevant circumstances, the Court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavor, the case of a party to the issue under consideration by him.”

He stressed that by “real danger” he meant a real possibility rather than a real probability of bias.

In casu the Respondent would be the right person to complain of bias, if there was any.  The Arbitrator considered supplementary submissions from the Applicants only.  She even commented on them in her award.  Respondent is not complaining, rightly so, as it did not abide by the agreed timeline.  I find no merit in these two grounds of review and they accordingly fail.

With regards to the second ground of review, Applicants allege that the Arbitrator referred to Statutory Instrument 174/2012 instead of 69 of 2006.  I agree with the Respondent that this should not be raised as a ground for review but on appeal.  In any event the ground has no merit.  The arbitrator sated that;

“In casu there is an allegation of casualisation of labour thereby contravening section 12 (b) (3) as read with clause 6 (5) of S.I. 174 of 2012 which claimants submit that the legislature sought to cure in enacting a law against casualisation of labour.”

The arbitrator concluded by saying

“…. The section does not apply to cases which arose previously before the passage of S.I. 174 OF 2012”.

Statutory Instrument 174 of 2012 was gazetted on 9 November 2012.  It is common cause that the matter concerns the period before the gazetting of the said statutory instrument.  Applicants argue that the Arbitrator should have referred to S.I. 69 of 2006.  This is a surprising argument as their statement of claim refers to S.I. 174 of 2012. Paragraph 7 on page 62 of the record states;

“7. This is so because statutory instrument applicable in the industry S.I. 174 of 2012 provides I quote, in the case of …..”

Again in paragraph 10 they state that the intention of the drafters of S.I. 174 of 2012 was to arrest casualisation of labour.  There is no reference to S.I.69 of 2006 at all in the claimants’ statement of claim.  It is only in the heads of argument that Applicants state in paragraph 13,

“For an even stronger reason, it is apparent from the award that that the Honourable Arbitrator invoked the wrong statutory instrument.  At the material time the Applicants entered into Respondent’s employ, up to until sometime in 2012, the applicable instrument was S.I. 69 of 2006.  It therefore follows that the Statutory Instrument to be used in determining whether or not the Applicants had become permanent employees of the First Respondent was S.I. 69 of 2006 and not S.I. 174 of 2012.”

Applicants realized their mistake too late and sought to impute it on the Arbitrator.  It is not the arbitrator who initiated the reference to S.I. 174/12.  It is Applicants in their statement of claim.  There is therefore no merit in this ground of review as well.

Accordingly the application for review fails.

Wherefore it is ordered that

The application for review, being without merit, be and is hereby dismissed with costs.

Zimbabwe Graphical Workers’ Union, Applicants’ representatives

Coghlan, Welsh & Guests, Respondent’s legal practitioners