This was an application for the registration of an arbitral award. It was opposed.Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.The applicant was a former employee of the respondent.The arbitration happened after the cessation of the employer-employee relationship. That cessation ...
This was an application for the registration of an arbitral award. It was opposed.
Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.
The applicant was a former employee of the respondent.
The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.
It was for the determination of the appropriate terminal package that the matter was referred to arbitration.
The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:
“My award, therefore, is that the Respondent pays the Claimant -
(a) USD7,000 being his salary for August 2007;
(b) USD42,000 as a severance package;
(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”
I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.
The proceedings before me commenced by way of a chamber application. The heading to the application was:
“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”
The highlighted portion was another source of argument.
The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].
On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.
It shall soon become apparent why the parties took such positions.
The opposition to the application was based on four grounds:
(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.
For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.
(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.
(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.
(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.
Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship....,.
With the view that I have taken in respect of the respondent's objection No.1, it is no longer necessary to deal with the rest of the other objections, namely, whether or not the award should have specified the amount of PAYE tax payable and whether or not set off should apply.
