Zimbabwe Broadcasting Corporation (PVT) Ltd v Godwell Chakwanda & 17 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/633/16
HELD AT HARARE 18 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/633/16

HELD AT HARARE 18 MAY 2016				CASE NO LC/H/897/15

& 21 OCTOBER 2016

ZIMBABWE BROADCASTING CORPORATION		Appellant

(PVT) LTD

GODWELL CHAKWANDA & 17 OTHERS			Respondents

Before The Honourable G Musariri, Judge

For Appellant		Ms R Magundani, Attorney

For Respondents		Mr P Mabundu, Attorney

MUSARIRI J:

On 17 August 2015 at Harare, Arbitrator J Ndomene issued an arbitration award.  He dismissed appellant’s application for rescission of an earlier award.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.  The grounds of appeal were two-fold as follows,

“1. The arbitrator misdirected himself at law in finding that the default was wilful when in the circumstances, the default was not wilful.

2. The arbitrator erred and misdirected himself at law in deciding a labour matter on a technicality.”

The earlier award was issued by the same arbitrator on 7 July 2015.  In his award the arbitrator stated that,

“Both parties were notified of arbitration proceedings.  However the respondent did not attend the same, neither was the reason for such handed to the arbitrator.  Out of that the arbitrator proceeded with the claim uncontested, and shall thus grant it unopposed.”

Default

The award was based upon appellant’s alleged default.  Appellant explained that they received notice of the pre-arbitration meeting.  Same was misfiled at their offices.  As a result they failed to attend the meeting.  They were not notified of the date for the subsequent arbitration.  Thus they could not attend to defend themselves.  That is a plausible explanation for their default which at least cannot be described as “wilful”.  The date of the actual arbitration is not apparent from the award itself.  I also note that respondent did not clarify same nor tender proof that appellant was aware of the date.

Prospects

Respondents alleged a unilateral variation of their conditions of employment by appellant.  Appellant averred that the new terms were agreed by the parties.  As proof it tendered copies of the signed contracts with the new terms.  Thus appellant have an arguable case on the merits.  In these circumstances I consider that the arbitrator grossly misdirected himself by determining the matter on a technicality.  Appellant should have been afforded an opportunity to argue its case on the merits.

Wherefore it is ordered that,

The arbitration awards issued by arbitrator J Ndomene dated 17 August 2015 and 7 July 2015 are hereby set aside;

The matter is remitted to a different arbitrator for a fresh hearing; and

The new arbitrator shall be agreed by the parties or nominated by the Registrar of this court.

G MUSARIRI

J U D G E