MAFUSIRE J: This was an application for the
registration of an arbitration award. It was opposed. At the end of the hearing
I granted the application.
The facts were these: at all
relevant times the applicant had been a former consultant of the respondent. He
had resigned in July 2010. On 31 August 2012 the arbitrator had awarded him $57
144.14 as his outstanding terminal benefits due by the respondent. The amount
would be paid within 21 days. The respondent had not paid. On 7 September 2012
the applicant applied to this court to register the arbitrator's award as an
order of this court in terms of s 98(14) of the Labour Act, Cap 28:01.
The respondent opposed the application. The overall ground of objection was
that the arbitration award was contrary to the public policy of Zimbabwe.
The respondent raised numerous
reasons. But they were not crisply synthesised. It was difficult to pick out
exactly the manner in which the public policy of Zimbabwe was said to have been
breached by the award.
In a nutshell, and in my own words,
the respondent's major grounds of opposition, as I perceived them, were these:
1.
That the arbitrator had erroneously interpreted the relevant provision of the
then contract of employment between the parties to mean that the applicant had
been entitled to 30% of all the revenue earned by the
applicant as opposed to only that revenue that the respondent had earned in
respect of those projects under his supervision.
2.
That the arbitrator had wrongly decided the dispute without receiving evidence
from the applicant but had merely relied on the submissions made by his legal
practitioner.
3.
That the arbitrator had committed a gross error by finding that the Labour Act
was still applicable to the parties when in fact their relationship was no
longer that of employee and employer after the applicant had resigned. In this
regard the respondent relied on the case of Blue Ribbon Foods Ltd v Dube NO
& Anor 1993 (2) ZLR 146 (S) as authority for its claim that the Act
allegedly “… has no jurisdiction between former employers and former employees”
(sic).
In his papers the respondent made an
oblique reference to an appeal or an intention to appeal the arbitrator's award
as a reason why the award should not be registered. However, it appeared that
no appeal had been filed.
I found the respondent's opposition
lacking in merit. In my view, none of the reasons for the objection amounted to
a breach of the public policy of Zimbabwe. Those were grounds for an
appeal or a review. Whether or not the applicant was entitled to 30% of all or
part of the revenue earned by the respondent for the period in question was a
question of fact. The arbitrator could properly deal with it. Also, whether or
not the arbitrator could decide the matter on the basis of the submissions by
the legal practitioners for the parties without the aid of viva voce
evidence depended on the agreement of the parties and the arbitrator at the
pre-arbitration stage. This appears to have been the case from the record. But
this is besides the point. It was incompetent for the respondent to have
mounted an objection on that basis.
In an application for the
registration of arbitral awards in terms of s 98(14) of the Labour Act this
court is not called upon to determine the merits of the arbitrator's decision
or the propriety of the proceedings before him. Sub-section (14) of s 98 of the
Labour Act reads:
“(14) Any party to whom an arbitral
award relates may submit for registration the copy of it furnished to him in
terms of subsection (13) to the court of any magistrate which would have had
jurisdiction to make an order corresponding to the award had the matter been
determined by it, or, if the arbitral award exceeds the jurisdiction of any
magistrates court, the High Court.”
Sub-section (2) provides that the
Arbitration Act, Cap 7:15, shall apply to disputes referred for
compulsory arbitration. This case was one such. Article 35 in the Schedule to
the Arbitration Act provides for the manner of the registration of an arbitral
award with the High Court. Article 36(1) provides two sets of grounds on which
the registration of an arbitral award may be refused. The first set, in
paragraph (a), sub-paragraphs (i) to (v), has five grounds. These can be invoked
by the party against whom the application for registration is made. None of
these grounds was applicable in this matter. The second set, in paragraph (b),
sub-paragraphs (i) and (ii), has two grounds.
In terms of the first ground in the
second set this court can refuse registration of an arbitral award if it finds
that the subject-matter of the dispute is not one capable of settlement by
arbitration under the law of Zimbabwe. As mentioned above one of the
respondent's grounds of objection was that the Labour Act does not apply to
ex-employees. I do not know whether by this it was meant to say that if that
Act was no longer applicable then the dispute between the parties was one not
capable of resolution by arbitration. The argument was never developed properly.
But whatever the respondent meant the objection was ill-conceived. A dispute
between an ex-employee and his ex-employer would still be one capable of
resolution by arbitration under the law of Zimbabwe, whatever the Labour Act
provides.
But more importantly, the Labour Act
does apply to disputes between ex-employees and ex-employers in respect of
rights and obligations that accrued during the subsistence of the employment.
Firstly, contrary to respondent's understanding of the Supreme Court judgment
in the Blue Ribbon Foods case, the ratio decidendi of that
judgment was that an employee whose employment had ceased did not lose his
rights as an employee which had vested during the time of employment and that
he would be entitled to a remedy in terms of the dispute resolution mechanism
set up by the then Labour Relations Act.
The facts of the Blue Ribbon
Foods case were that one Gonyora, an employee of Blue Ribbon Foods, had
found alternative employment after he had noted an appeal against the decision
of the labour relations officer (“LRO”) who had granted permission for
his dismissal, but before such appeal had been heard. The appeal before the LRO
had eventually succeeded. However, because Gonyora had found alternative
employment the RHO had ordered reinstatement only up to the time he had found
the alternative employment. Blue Ribbon Foods took the decision of the RHO on
review to this court. One of the grounds of review was that the RHO had lacked
jurisdiction to deal with the matter because Gonyora had taken up alternative
employment elsewhere. Having lost in this court Blue Ribbons Foods took the
matter on appeal to the Supreme Court. The appeal succeeded. It was held that
although Gonyora had taken up alternative employment elsewhere and had therefore
ceased to be an employee of Blue Ribbon Foods nevertheless his rights as
employee had existed up to the time he had noted his appeal against the
decision of the LRO. Once that right had vested in him Gonyora had been
entitled to an order from the RHO. At pp 151 – 152 of the judgment, McNALLY JA
said:
“Gonyora's rights as an employee
existed at the time he noted his appeal against the decision of the Labour
Relations Officer. He was entitled to a full re-hearing in terms of s 17 of SI
368/85, as read with s 15 of the same Statutory Instrument. Once that right
vested he is entitled to an order, whether or not his status is subsequently
altered. Obviously reinstatement would not at that stage be a viable option,
but an order that back-pay be paid up to the time of the termination of
employment could be made in terms of s 111 (2)(a) of the Act.”
The Blue Ribbon Foods case
was decided in 1993 under the then Labour Relations Act. Since then this Act
has undergone numerous changes. The issue of vested rights of ex-employees is
put beyond issue in s 13 of the current Act. It reads:
“13 Wages and benefits upon
termination of employment
(1)
Subject to this Act or any regulations made in terms of this Act, whether any
person –
(a)
is dismissed from his employment or his employment is otherwise terminated; or
(b)
resigns from his employment; or
(c)
………………………………….
(d)
…………………………………..
he
or his estate, as the case may be, shall be entitled to the wages and benefits
due to him up to the time of such dismissal, termination, resignation,
incapacitation or death, as the case may be, including benefits with respect to
any outstanding vacation and notice period, medical aid, social security and
any pension, and the employer concerned shall pay such entitlements to such
person or his estate, as the case may be, as soon as reasonably practicable
after such event, and failure to do so shall constitute an unfair labour
practice.”
In the circumstances, in no way
could the respondent have mounted an objection to the registration of the award
on the ground of a breach of the public policy of Zimbabwe based on an alleged
lack of jurisdiction by the arbitrator by reason of the termination of the
contract of employment between the parties. But that is not the end of the matter.
The second set of grounds in
paragraph (b) of sub-article (1) of article 36 in the Schedule to the
Arbitration Act on which this court can refuse the recognition of an arbitral
award is if the recognition or enforcement of that award would be contrary to
the public policy of Zimbabwe. In this connection the respondent referred to a
number of cases that have dealt with the test to be applied in determining
whether or not an award would be in conflict with the public policy of
Zimbabwe. The cases are Zimbabwe Electricity Supply Authority v Maposa
1999 (2) ZLR 452 (S); Delta Operations (Pvt) Ltd v Origen Corporation (Pvt)
Ltd 2007 (2) ZLR 81 (S); Francina Zimayi vBurdock Investments
(Pvt) Ltd and 2 Ors HH-64-07.
According to the test as set out in
the Maposa case, (per GUBBAY CJ, at pp 465 – 466):
“An award will not be contrary to
public policy merely because the reasoning or conclusions of the arbitrator are
wrong in fact or in law. In such a situation the court would not be justified
in setting the award aside. Under article 34 or 36, the court does not exercise
an appeal power by having regard to what it considers should have been the
correct decision. Where, however, the reasoning or conclusion in an award goes
beyond mere faultiness or incorrectness and constitutes a palpable inequity
that is so far reaching and outrageous in its defiance of logic or accepted
moral standards that a sensible and fair minded person would consider that the
conception of justice in Zimbabwe would be intolerably hurt by the award, then
it would be contrary to public policy to uphold it.”
Curiously, respondent made no
reference to sub-article (3) of article 36. It gives some examples of aspects
that would plainly be perceived as being contrary to the public policy of
Zimbabwe. It reads:
“(3) For the avoidance of doubt and
without limiting the generality of paragraph (1)(b)(ii) of this article, it is
declared that the recognition or enforcement of an award would be contrary to
the public policy of Zimbabwe if –
(a) the making of
the award was induced or effected by fraud or corruption; or
(b) a breach of the
rules of natural justice occurred in connection with the making of the
award.”
Responded did not make out the case
that by invoking the test in the Maphosa and other cases it felt that
its situation fell outside the example in article 36(3). But obviously it was
not the respondent's case that the making of the award in the case between
itself and its ex-employee had been induced or effected by fraud or corruption.
It was also not its case that the audi alteram partem rule had been
breached.
On the other hand, where the
contract of employment between the parties provided: “[i]n summary, as a
revenue earning employee, you will be paid 30% of all revenue earned over and above
your basic salary” and the arbitrator ruled that the applicant was entitled
to 30% of the revenue earned by the respondent during the relevant period, I
saw no “faultiness or incorrectness” that constituted “a palpable
inequity” in the arbitrator's reasoning or conclusion. I saw nothing “so
far reaching and outrageous in its defiance of logic or accepted moral
standards”. I saw nothing that “a sensible and fair minded person”
would consider a misconception of justice in Zimbabwe. I saw nothing intolerably
hurtful. In short I saw nothing contrary to the public policy of Zimbabwe.
In the premises I dismissed the
respondent's objection and granted the application with costs.
Kantor
& Immerman,
applicant's legal practitioners
Dube, Manikai & Hwacha, respondent's legal practitioners
