Victoria Foods (Private) Limited v Dorcas Kambani & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/36/13
HELD AT HARARE ON 11 FEBRUARY 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/36/13

HELD AT HARARE ON 11 FEBRUARY 2013		CASE NO. LC/H/281/11

In the matter between:

VICTORIA FOODS (PRIVATE) LIMITED		Appellant

And

DORCAS KAMBANI						1st Respondent

HONOURABLE ARBITRATOR C. KABASA		2nd Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				Mr R. Matsikidze (Legal Practitioner)

For Respondent				Mr C. Kwaramba	(Legal Practitioner)

NDEWERE E.F

The Applicant applied for Review of Honourable C. Kabasa’s award in the above case given on 4 May, 2011.

The grounds for review were that the award is defective in that:

“The “award”, does not give a meaningful factual narration and analysis as to what exactly were the issues before the Arbitrator.

On page 1 of the so called award there is no heading, “arbitral award” which is important and indicative that indeed it is an arbitral award.

There is no clear cut indication as to what was submitted by the parties to the Arbitrator in the arbitration proceedings, in fact, the Applicant’s submissions are misrepresented.

The arbitral award has grammatical errors; fundamental and structural defects that practically make it cease to be an arbitral award.

The Honourable Arbitrator never gave the reasons for his findings in particular, the finding that the disciplinary committee had no jurisdiction, the finding that the Claimant was constructively dismissed and the finding that the dismissal was unfair.

The Honourable Arbitrator’s award is defective in that whilst he was appointed as an individual to hear the case alone, he seems to have analysed the case in company of one or more people as more fully being exposed by the use of the word “we”.

The Honourable Arbitrator grossly erred in failing to apply the general principles required in coming up with an arbitral award.

The Honourable Arbitrator grossly erred by not calling the parties for an oral hearing when clearly the issues at hand required factual inquiry.

The Honourable Arbitrator grossly erred at law to consider the merits of the allegations against first Respondent.”

The Applicant’s prayer was that the Arbitration award be set aside and the matter be referred to another Arbitrator for a hearing de novo or alternatively, that the Labour Court hear the merits of the matter de novo.

In response, whilst conceding that the Arbitrator did not give the parties the opportunity to make oral submissions and that he made some wrong statements and incorrect findings, Respondent’s counsel argued that the application did not meet the criteria for review and should therefore be dismissed.

In terms of Section 89 (I) (d) of the Labour Act [Chapter 28:01], the Labour Court shall:

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters”.

Section 27 (I) (c) of the High Court Act [Chapter 7:06] provides as follows:

“Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be-

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Gross irregularity in the proceedings or decision.”

Section 28 of the High Court Act further provides that:

“On a review of any proceedings or decision, other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”

The above provisions show that if gross irregularity in the proceedings or decision is proved, the Labour Court can set aside or correct the proceedings or decision.  So the issue now is whether the Arbitration proceedings or decision were grossly irregular.

The first irregularity by the Arbitrator which is conceded by the Respondent is the fact that the Arbitrator denied the parties the opportunity to make oral representations to him during a hearing.  He received their submissions and then proceeded to determine the case.

It was improper for the Arbitrator to proceed in this manner.  Parties to arbitration should be given the opportunity to make oral submissions at a hearing; unless if the parties themselves agree to rely on the written submissions only.  It is not for the Arbitrator to conclude that the parties have submitted “enough” written information and then deny them the right to an oral hearing.  Some issues may require clarification during oral presentation, for the benefit of the Arbitrator.  In fact, if the Arbitrator had afforded the parties the opportunity to make oral presentations, the parties would have assisted him greatly in defining the issues before him and one of the fundamental errors he made by including “jurisdiction” and “constructive dismissal” as issues would have been avoided from the outset.  The parties would have clarified the issues to him.

As correctly submitted by counsel for the Applicant, the award has structural defects and there is no clear cut distinction between what was submitted by the parties to the Arbitrator and the Arbitrator’s own decision or award.

Counsel gave the example of page 3 of the award, paragraph 2.  That whole paragraph about an e-mail is misplaced.  It reads like a submission by one of the parties, yet it finds its way into the award for no clear reason and it is not directly connected to what is in paragraph 1 above or what is in paragraph 3 below it.

On page 4 of the award the Arbitrator writes;

“……….. we conclude that:-

The disciplinary committee had no jurisdiction to carry out disciplinary action against the claimant.”

The Applicant took issue with the use of “we” and said this gives the impression that the Arbitrator did not do the case alone, but with another unknown person or persons.  The Court agrees that the use of “we” in such circumstances raises confusion as to who actually determined the case.

The Applicant also took issue with the failure to give reasons for concluding that the disciplinary committee had no jurisdiction to discipline the claimant.  The failure to give reasons becomes even more glaring when one takes into account the fact that the Disciplinary Committee had the jurisdiction, a fact which Respondent’s counsel conceded during his submissions.

The Arbitrator proceeds and concludes “that claimant was constructively dismissed and the dismissal was unfairly done.” Again no analysis of the evidence or submissions is made and the Arbitrator’s conclusion is obviously wrong because one is either constructively dismissed or unfairly dismissed; you cannot have both occurring on the same facts because in constructive dismissal, one is forced by circumstances to resign whilst in the other, one is actually dismissed, but in an unfair manner.

Thereafter the Arbitrator proceeds to give what he calls “Our award”, again giving the impression that he did the case with some unknown person or persons.  The first statement of the award is acceptable, despite the unnecessary inclusion of the phrase “and continue working” which is unnecessary repetition because reinstatement means you continue working.  However, the second statement is so confusing that one does not know what the Arbitrator meant to say because the statement is contradicting the first statement.

In the first statement, the Respondent is being ordered to reinstate and in the second statement, the Respondent is being ordered to terminate and this is so contradictory that in the end, it is difficult to know what the Arbitrator’s decision is.

The Arbitrator concludes the second statement by an order on an issue raised by him mero motu for the Respondent to pay punitive damages; again without giving any analysis or reasons.

The Respondent conceded in his Heads of Argument that indeed wrong statements and words were used but he then tried to explain to the Court his interpretation of what the Arbitrator meant to say.  This is untenable.  An award should be clear and unambiguous to the parties.

Consequently, the Court is satisfied that there was gross irregularities in the proceedings and in the decision and I am accordingly setting aside the award and remitting the case to a different Arbitrator for a hearing de Novo.

The Applicant had filed an appeal in the alternative, on the same facts.  Since I have set aside the award; there is now no appeal to consider because appeals are on valid awards.  The appeal is accordingly struck off.

The Applicant applied for costs.  The Court, is however reluctant to award costs against the first Respondent.  The Respondent has genuine grievances and she is not to blame for the manner the case was handled by the Arbitrator.  I will therefore not award costs against her.

The second Respondent has been sued in his official capacity as an Arbitrator.  In practice, no papers are ever filed on behalf of Arbitrators as Respondents and no submissions are ever made on their behalf.  The Court therefore finds it difficult to penalize the Arbitrator by way of costs when he has not been heard on the matter.

Consequently it is ordered as follows:

that the application for review is granted and the Arbitrator’s award is set aside and the case referred to a different Arbitrator for a fresh hearing.

the Arbitrator’s award having been set aside, the appeal against the award be and is hereby struck off.

Each party will pay its own costs.

E.F. NDEWERE

PRESIDENT

MATSIKIDZE AND MUCHECHE LEGAL PRACTITIONERS – APPELLANT’S LEGAL PRACTITIONERS

MBIDZO, MUCHADEHAMA&MAKONI LEGAL PRACTITIONERS – RESPONDENT’S LEGAL PRACTITIONERS