Zimbabwe National Water Authority v Zimbabwe Energy Workers Union & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/772/2014
HARARE, 29 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/772/2014

HARARE, 29 OCTOBER 2014		     		     CASE NO. LC/H/179/13

AND 21 NOVEMBER 2014

In the matter between:-

ZIMBABWE NATIONAL WATER				Appellant

AUTHORITY

And

ZIMBABWE ENERGY WORKERS 				1st Respondent

UNION

And

ZIMBABWE NATIONAL WATER 				2nd Respondent

AUTHORITY NAMED EMPLOYEES

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. J. Dondo (Legal Practitioner)

For Respondents		Miss L. Shambamuto (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the Arbitral Award that was handed down by Honourable Arbitrator A.J. Manase on 1st February 2013.  In this award the Arbitrator ordered that Appellant should pay its employees a housing allowance calculated at 50% of the basic pay.  The total figure of the housing allowance was $12 894 294 291,92.

The grounds of appeal are that

The Arbitrator grossly misdirected himself and arrived at an unreasonable and incorrect decision to award damages in the exorbitant amount of US $12 894.12.

The Arbitrator failed to appreciate that the Appellant cannot possibly afford to pay the amount of damages awarded when one takes into account the income generated by Appellant and other proven liabilities.

The Award has no legal basis and it is not premised on any rational ground.

It is on these grounds that the Appellant prayed that the Award be set aside.

The Respondent in response told the Court that

The Appellant is just trying to frustrate a properly handed down judgment.

The grounds of appeal are questions of fact and not law hence the appeal is a still born.

Failure to stipulate an amount to be paid for each installment does not amount to be for each installment does not amount to a question of law.

The Respondent therefore prayed for the dismissal of the appeal for lack of merit.

What is to be decided in this matter is whether an award based on facts which the employer cannot afford is wholly unreasonable and amounts to a question of law.  In the case of MUZUVA v UNITED BOTTLERS PVT LTD 1994 (1) ZLR 217 GUBBAY J defined a question of law as follows;

“The phrase question of law has three distinct though related meanings

A question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it think fit in accordance with what is considered to be the truth and  justice of the matter.

A question to what the law means is. An Appeal on a question of law is one in which the question for argument and determination is what the true rule of law is in a certain matter.

A question which is within the province of the judge instead of the jury.

In the case of Chinyange v Jaggers Wholesalers SC 24/03 it was also held that

“A serious misdirection on facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

It is this allegation that the Appellant is making that the misdirection of facts is so unreasonable as to amount to a point of law.  The Appellant has alleged that;

The award is exorbitant.

The Appellant cannot afford to pay it given the amount of revenue it is generating.

The Award is not based on any rational ground.

In the case of TEL ONE PVT LTD vs COMMUNICATION & ALLIED SERVICES WORKERS UNION OF ZIMBABWE 2007 (2) ZLR 262 HUNGWE J had this is say on the issue of public policy.

“the concept of public policy is an elusive one depending on transient and sometimes subjective views on what is or what is not in the public benefit or what constitutes Zimbabwean public good.  In assessing an arbitral award, the court must consider the substantive effect of the award and determine whether or not it is contrary to public policy in its effect.  There is no doubt that the spirit of Collective bargaining between employer and employee is to arrive by consensuses, if that fails, by arbitration what a fair wage is.  The idea is to preserve the employer employee relationship.  The employee makes his Labour available for a fair fee.  The employer engages the employee on acceptable terms and conditions.  The employer employs his resources to ensure that the goose that lays the eggs for their mutual benefit continues to do so.  Society expects these mutually beneficial outcomes.  Awards which would drive employers out of business, thereby destroying the economic fabric of the nation, could not be said to be in the best interests of the general good of Zimbabwe.”

The revenue inflows of $2 550 000,00 were way below the exorbitant claim of $12 894 291,92.  The Appellant has submitted during the period in question it was having a deficit balance in every month.  This therefore means that a global award of US$12 894 291,92 against an inflow of $2 550 000,00 was so exorbitant that it would adversely affect the employer employee relationship in that Appellant would be driven out of business resulting in the destruction of economic fabric of the Nation.  This then would not be in the best interests of the general good of Zimbabwe.  This gross misdirection on the facts resulting in an unreasonable Award then amounts to a question of law.

Furthermore from the global Award it is not known as to how much each employee is suppose to receive from the employer.

To that end therefore this court finds that the Appeal is properly before this court and has merit.

Accordingly IT IS HEREBY ORDERED THAT

The Appeal be and is hereby granted.

Each party to bear its costs.

DOND0 & PARTNERS, Appellant’s legal practitioners

MATSIKIDZE & MUCHECHE, Respondents’ legal practitioners