SANDURA
JA:
This
is an appeal against a judgment of the Labour Court which set aside
an arbitral award made in favour of the appellant.
The
background facts may be tabulated conveniently as follows:
1.
The appellant (“Vimbai”) was employed by the respondent (“the
Hotel”) as a supervisor.
2.
On 18 January 2005 the Hotel wrote to Vimbai informing him that his
contract of employment had been terminated. The letter reads as
follows:
“Please
be advised that effective 1 January 2005 your employment contract
with Sheraton Harare Hotel and Towers has been terminated. You are no
longer required to register for duty physically, on standby or in any
other form.
The
decision has been taken by management as a last resort after futile
attempts to resolve the matter amicably and through further attempts
to settle the matter through arbitration. Management and yourself are
of the opinion that the employment relationship has deteriorated to
non-productive levels.
As
a way forward, Sheraton Harare Hotel is willing to resolve the matter
through arbitration provided both parties agree on terms of reference
to be presented before the arbitrator.”
3.
Vimbai took the letter to his trade union, the Zimbabwe Catering and
Hotel Workers Union (“the Union”) which, on 20 January 2005,
wrote to the Hotel indicating that Vimbai's dismissal would be
challenged.
4.
On 21 January 2005 the Hotel wrote to the Union as follows:
“Vimbai
Mbisva's contract of employment has been terminated due to
deterioration in the working relationship between Sheraton Harare
Hotel and himself. As stated in our previous correspondence, we are
willing and able to engage in dialogue that will result in the
resolution of this matter. We are in addition willing to accept a
determination from a body with appropriate authority to settle the
matter.
The
hotel welcomes intervention from the Zimbabwe Catering and Hotel
Workers Union provided such intervention assists in a settlement of
the above matter.”
5.
Thereafter, the Union proposed that Vimbai be given a severance
package equivalent to his salary for a period of two-and-a-half
years, but the Hotel rejected that proposal.
6.
Subsequently, the Union and the Hotel entered into negotiations on
the best way forward, but the negotiations did not yield any positive
results.
7.
Then on 25 January 2005 Vimbai went to the Hotel where he signed a
Memorandum of Agreement (“the MOA”) which reads as follows:
“I
Vimbai Mbisva hereby acknowledge that I have entered into an
agreement with Sheraton Harare Hotel, under the following terms of
which I have agreed:
1.
to accept payment of the sum of Z$17,001,880.46 (Z$ seventeen million
one thousand eight hundred and eighty dollars and forty-six cents) as
full and final settlement of all claims that I have against Sheraton
Hotel Harare, its directors, subsidiaries, associated companies and
operations. I acknowledge that I have received Z$17,001,880.46 (Z$
seventeen million one thousand eight hundred and eighty dollars and
forty-six cents) in full.
2.
to withdraw all claims, complaints and statements made (by) me
relating to Sheraton Hotel Harare, whether with my legal advisors,
any
legal advisors, any government body, any court, tribunal or to (sic)
any other organisation.
I
acknowledge that I have no further claims against Sheraton Hotel
Harare, its directors, subsidiaries, associated companies and
operations, whether for damages or otherwise. I have entered into
this agreement of my own free will and I confirm that my signature
appears on this agreement. I undertake to file a copy of this
agreement with my legal advisors and any other organisation whose
assistance I had sought.”
8.
On 2 February 2005 Vimbai's legal practitioners referred the issue
of Vimbai's unlawful dismissal to a labour officer for
conciliation. The labour officer failed to settle the dispute and,
accordingly, on 15 April 2005 issued a Certificate of No Settlement.
9.
On 9 May 2005 the labour officer referred the dispute to compulsory
arbitration, and identified the issues for arbitration as:
“(1)
Whether the agreement of 25 January 2005 between V Mbisva and
Sheraton Hotel is valid or not.
(2)
If not, what damages are payable to Mr Mbisva.”
10.
On 3 June 2005 Vimbai and the Hotel's Human Resources Director
(“Makoni”) appeared before the arbitrator with their legal
practitioners. Both Vimbai and Makoni gave oral evidence and were
cross-examined. After addresses by the legal practitioners, the
arbitrator reserved his decision.
11.
On 18 July 2005 the arbitrator gave his decision, which was that the
MOA signed by Vimbai on 25 January 2005 was not binding on the
parties because it was not an agreement in the legal sense.
12.
Aggrieved by that decision, the Hotel appealed to the Labour Court in
terms of s98(10) of the Labour Act [Cap
28:01]
(“the Act”).
13.
On 5 April 2007 the Labour Court allowed the appeal and set aside the
arbitral award granted on 18 July 2005.
14.
Dissatisfied with that result, Vimbai appealed to this Court, leave
to appeal having been granted in terms of s92F(2) of the Act.
The
grounds of appeal set out in the notice of appeal are as follows:
“1.
The court a
quo grossly
erred as a question of law overturning the decision of the arbitrator
on ordinary common law (principles) and not on the (principles) of
public policies (enunciated) and captured in Article (34) of the
UNCITRAL Model Law as incorporated in our Arbitration Act [Cap
11:15].
Put simply, (in) overturning the decision of the arbitrator, the
court was obliged to consider whether the award in itself offended
public policy.
2.
Even assuming that the matter had to be determined purely and
squarely on the basis of s98(10) of the Labour Act [Cap
28:01],
the court a
quo grossly
erred (in) overturning (a) finding of fact by the arbitrator. Put
simply, there (were) no questions of law in the appeal pending before
the Labour Court, and for that reason, the Labour Court had no good
reason to interfere with the finding of fact that (had) been made by
the arbitrator.
3.
Put simply, the Labour Court grossly misunderstood its functions, the
court dealing specifically with questions of law under s98(10) of the
Labour Act [Cap
28:01].
4.
Even assuming, without conceding, that (there were) questions of law
in the appeal before the Labour Court, the Labour Court itself
grossly erred in holding that (the) document executed on the 25th
of January 2005 was binding, and ignored that the same had been
executed under protest. In any event to show that the appellant was
not agreeing with the same he had left a settlement cheque with the
respondent.”
Although
four grounds of appeal are set out in the notice of appeal, there are
in fact only three grounds because the second and third grounds raise
the same issue, i.e. whether there were questions of law in the
appeal pending before the Labour Court.
I
shall deal with grounds 2 and 3 first, and then with grounds 1 and 4.
DID
THE APPEAL TO THE LABOUR COURT INVOLVE A QUESTION OF LAW?
This
question is important because in terms of s98(10) of the Act the
right to appeal against the arbitrator's decision is restricted to
questions of law only. The section reads as follows:
“An
appeal on a question of law shall lie to the Labour Court from any
decision of an arbitrator appointed in terms of this section.”
What
is a question of law was considered by this Court in Muzuva
v United Bottlers (Pvt) Ltd 1994
(1) ZLR 217 (S). At 220D-F GUBBAY CJ said:
“The
twin concepts, questions of law and questions of fact, were
considered in depth by E.M. GROSSKOPF JA in Media
Workers Association of South Africa and Ors v Press Corporation of
South Africa Ltd (Perskor) 1992
(4) SA 791 (A).
Approving the discussion of the topic in Salmond
on Jurisprudence 12ed
at 65-75, the learned JUDGE OF APPEAL pointed out at 795D-G that the
term 'question of law' is used in three distinct
though related senses.
(i)
First, it means 'a question which the law itself has
authoritatively answered to the exclusion of the right of the court
to answer the question as it thinks fit in accordance with what it
considered to be the truth and justice of the matter'.
(ii)
Second, it means 'a question as to what the law is.
Thus,
an appeal on a question of law means an appeal in which the question
for argument and determination is what the true rule of law is on a
certain matter; and
(iii)
third, any question which is within the province of the judge instead
of the jury is called a question of law. This division of judicial
function arises in this country in a criminal trial presided over by
a judge and assessors.”
Applying
these principles to the Hotel's appeal to the Labour Court, there
is no doubt in my mind that the appeal involved a question of law. I
say so because in its notice of appeal filed in
the Labour Court
the Hotel based the appeal on the following ground of appeal:
“the
arbitrator erred grossly at law and on the facts in holding that the
Memorandum of Agreement is not (an) agreement in terms of the law.”
The
issue before the Labour Court was, therefore, whether the MOA was an
agreement in terms of the law. That, in my view, is a question of law
within the second sense of the term 'question of law' set out
above.
There
is, therefore, no substance in the second and third grounds of
appeal.
DOES
ARTICLE 34(2)(b)(ii) OF THE MODEL LAW APPLY TO APPEALS BROUGHT TO THE
LABOUR COURT IN TERMS OF S98(10) OF THE ACT?
This
issue arises because in the first ground of appeal it is submitted
that the Labour Court should not have set aside the arbitral award
unless it had been satisfied that the award was in conflict with the
public policy of Zimbabwe, in terms of Article 34(2)(b)(ii) of the
Model Law set out in the First Schedule to the Arbitration Act [Cap
7:15].
Article
34 of the Model Law, in relevant part, reads as follows:
“(1)
Recourse to a court against an arbitral award may be made only by an
application for setting aside in accordance with paragraphs (2) and
(3) of this article.
(2)
An arbitral award may be set aside by the High Court only if -
(a)…,.
(b)
the High Court finds that -
(i)
the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Zimbabwe; or
(ii)
the award is in conflict with the public policy of Zimbabwe.
(3)…,.”
The
issue set out above was considered by this Court in NetOne
Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers
Union of Zimbabwe (2) Fifty-Six Net One
Employees SC
89/05.
In
that case this Court ruled that Article 34 of the Model Law did not
apply to an appeal against
an arbitral award, brought to the
Labour Court in terms of s98(10) of the Act.
In
my view, it is quite clear, from a careful reading of Article 34,
that the Article only deals with and limits the power of the High
Court to set aside an arbitral award, and does not in any way deal
with or limit the power of the Labour Court to set aside an arbitral
award challenged in terms of s98(10) of the Act.
I
cannot, therefore, see any reason for departing from this Court's
decision in the Net One case supra.
Consequently,
the Labour Court did not have to be satisfied that the arbitral award
was in conflict with the public policy of Zimbabwe before setting it
aside.
There
is, therefore, no merit in the first ground of appeal.
WAS
THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?
In
the fourth ground of appeal it is submitted that the Labour Court
erred in holding that the MOA was binding on Vimbai, and ignored the
fact that it was signed under duress.
However,
this ground of appeal was not dealt with in the heads of argument
filed on behalf of Vimbai. Nevertheless, I will deal with it.
The
issue raised in this ground of appeal is whether the MOA was signed
under duress.
As
already stated, both Makoni and Vimbai gave evidence before the
arbitrator and were cross-examined. After consideration of that
evidence, the arbitrator said the following:
“In
one way or the other, after the dismissal of the claimant, the
parties contacted each other, resulting in the claimant and Mr Makoni
(from Sheraton) meeting to 'finalise' the matter. At
this
penultimate meeting, the employer presented a document that
would put the matter to rest. The claimant knew that if he continued
to challenge his dismissal, he would get nothing from
the
employer. He therefore pretended to be accepting his terminal
benefits, but requested that they be split into two parts, with the
first part incorporating largely the January salary and (the) other
part the rest of the other terminal benefits.
The
claimant then wrote “U.P.” after his signature to signify that he
was accepting the benefits 'Under Pressure'.
This
was not explained to the employer. The employer acknowledges that he
(it?) was not aware that the claimant had signed the document under
pressure.
The
claimant hoodwinked the employer into believing that he was
consenting to the termination of employment and to the acceptance of
terminal benefits. This was done with the sole aim of accessing the
January salary.
The
claimant's conduct is deplorable.
He
was understandably desperate for cash but he used unorthodox methods
to get what he wanted.
He
lied that he was accepting the benefits of his own free will, and
that his acceptance was in full and final settlement of (the) claims
that he had against the respondent.
No
wonder the respondent's agent kept referring to him as a trickster.
Had
it not been for my findings regarding the MOA I would have ruled that
the claimant be bound by (his) signature, never mind the invented
'U.P'.”
It
is quite clear from what the arbitrator said that he was satisfied
that Vimbai had not signed the MOA under duress.
The
Labour Court was of the same view and said the following:
“It
may very well be true that he was under financial pressure which
forced him to accept a deal that he did not like. But the fact
remains that he need not have accepted the deal. It is not like his
will was overborne by (the) appellant's to the extent that he had
no choice in the matter. He had a choice. He could have rejected the
whole deal and pursued other remedies. The fact that he now feels
that he should have got more than the deal offered is no ground for
breaking the deal.”
The
finding by the Labour Court that Vimbai did not sign the MOA under
duress is a finding of fact, which is not appealable unless it can be
said to be irrational in the sense set out in Hama
v National Railways of Zimbabwe 1996
(1) ZLR 664 (S) at 670C-E, where this Court said:
“The
general rule of law, as regards irrationality, is that an appellate
court will not interfere with a decision of a trial court based
purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied
his
mind to the question to be decided could have arrived at
such a conclusion: Bitcon
v Rosenberg 1936
AD 380 at 395-7; Secretary
of State for Education and Science v Metropolitan Borough of Tameside
[1976]
3 All ER 665 (CA) at 671E-H; CCSU
v Minister for the Civil Service [1984]
3 All ER 935 (HL) at 951A-B; PF-ZAPU
v Minister of Justice (2) 1985
(1) ZLR 305 (S) at 326E-G.”
In
the present case, I am not prepared to say that having regard to the
evidence placed before the arbitrator and the Labour Court the
finding complained of is irrational in the sense set out above.
Consequently,
the finding that Vimbai did not sign the MOA under duress is not
appealable, and the fourth ground of appeal, therefore, falls away.
In
my view, the Labour Court correctly determined the matter. The MOA
was a declaration by Vimbai that the dispute between him and the
Hotel had been settled on the terms and conditions set out in the
MOA. That conclusion is logically consistent with what happened in
this case before 25 January 2005.
Vimbai
was dismissed by the Hotel. He reported the matter to the Union and a
labour dispute ensued. Negotiations aimed at settling the dispute
commenced between the Union and the Hotel. The Union proposed that
Vimbai be given a severance package equivalent to his salary for a
period of two-and-a-half years, but the Hotel rejected the proposal.
As he badly needed some money Vimbai went to the Hotel on 25 January
2005 and signed the MOA, declaring that the
labour dispute had
been settled on the terms and conditions set out therein.
In
my view, that declaration is binding on him.
In
the circumstances, the appeal is dismissed with costs.
ZIYAMBI
JA: I agree
MALABA
JA: I agree
Honey
& Blanckenberg,
appellant's legal practitioners
Dube,
Manikai & Hwacha,
respondent's legal practitioners
