After hearing counsel for the appellant, the appeal was
allowed with costs and the order of the court a quo set aside. The matter was
remitted to the court a quo for it to be determined on the merits. It was
indicated that reasons for the decision would follow in due course.
These are they
The respondent was employed by the appellant as an Empty Bottles
Clerk until August 2009 when he was retired after having attained the
retirement age of sixty (60) years in January 2009. Mr Manyika had originally
been an employee of the then Farmers Co-op. He had joined the Farmers Co-op
Pension Fund in 1982. Under that Pension Fund's regulations the date of
retirement was said to be January 2014. In 1995, there were changes in the
company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the
passage of time. Under the CFI Pension Fund regulations, the age of retirement
was lowered to 60 years and all the employees were informed of the change
through their subsidiaries. The information was also communicated to the
employees through their payslips. The same information was also placed on the
notice boards which were accessible to all employees.
The respondent was still of the belief that his retirement
age was sixty-five (65) years which would have been reached on 30 January
2014. According to the new pension regulations, the respondent should have been
retired from work in January 2009. He was however retired in August 2009. The
appellant admitted that there was an oversight on their part as there had been
changes in the Human Resources Department. Mr Manyika unsuccessfully pleaded
with the appellant to remain at work until January 2014.
Mr Manyika was aggrieved by the decision of the appellant
and approached a labour officer complaining of unfair labour practice. The
dispute was referred to compulsory arbitration.
After hearing both parties, the arbitrator issued the
following award:
“Having carefully considered both oral and written
submissions and evidence from both parties, I hereby declare that:
1. Respondent committed an unfair labour practice by
prematurely retiring Eric Manyika on 31 August 2009 having given him short
notice.
2. In light of this finding, and as a remedy to the unfair
labour practice, I hereby order respondent to comply with one of the two
options given below:
Either: (a) Reinstate claimant without loss of pay and
benefits from 1 September 2009 and keep him to the pay roll until his normal
retirement age on 13 January 2014;
Or
(b) If reinstatement
is no longer an option for whatever reason, pay claimant the following:
(i) Full pay and benefits from 1 September 2009 to 31 July
2011.
(ii) Cash-in-lieu of leave from 1 September 2009 to 31 July
2011.
(iii) 12 months pay as damages for loss of employment
before normal retirement age.
(iv) 3 months notice pay.
(v) Any other terminal benefits which claimant may be
legally entitled.”
The appellant was aggrieved by the decision of the
arbitrator and approached the Labour Court. The appellant lodged an application
for interim determination in terms of section 92E(3) of the Labour Act [Chapter
28:01] (“the Act”). It however withdrew the application.
On the day of the hearing, the respondent raised a point in
limine alleging that the appellant had approached the court with dirty hands
since it had not complied with the arbitrator's decision.
The Labour Court held that the appellant ought to have
complied with the arbitrator's award before approaching the court. It upheld
the point in limine and dismissed the appeal from the arbitral award.
The appellant noted an appeal to this Court on the
following grounds:
1. The court a quo erred at law in finding that the
appellant's failure to comply with an arbitration award it was appealing
against constituted dirty hands and even then, to the extent that the appellant
should be denied audience.
2. The court a quo erred at law and erred grossly on the
facts in finding that the appellant was contemptuously failing to comply with
the award. In so finding, the court disregarded the fact that the amount
payable by the appellant to the respondent was not quantified.
3. The court a quo erred at law in finding that the
appellant had dirty hands when the appellant's non-compliance was one in the
context of a pending application for interim relief.
4. Assuming, without conceding, that the appellant's hands
were dirty such as to be denied audience, the court a quo erred at law in
dismissing the appellant's appeal for the reason alone. Instead, the court a
quo should have denied the appellant audience but postponed the matter till
such time when the appellant had complied with the arbitration award.
Section 92E of the Labour Act [Chapter 28:01] provides as
follows:
“Section 92E:
Appeals to the Labour Court generally:
(1) An appeal in terms of this Act may address the merits of
the determination or decision appealed against.
(2) An appeal in terms of subsection (1) shall not have the
effect of suspending the determination or decision appealed against.
(3) Pending the determination of an appeal, the Labour
Court may make such interim determination in the matter as the justice of the
case requires.”
Section 92E(2) of the Labour Act [Chapter 28:01] only
provides that the noting of an appeal to the Labour Court against a
determination or decision does not have the effect of suspending the operation
of the determination or decision appealed against. The purpose of the section
is to provide for the effect of the noting of an appeal in terms of the Act on
the enforcement of the determination or decision. The provision is the reversal
of the common law principle that the noting of an appeal against a judgment or
decision of a tribunal or lower court suspends the execution of the judgment or
decision pending the determination of the appeal.
Section 92E(2) of the Labour Act [Chapter 28:01] does not
impose an obligation on a party appealing against the determination or decision
to act in terms of the determination or decision appealed against pending
determination of the appeal. In other words, there is no provision requiring
the appellant to first comply with the determination or decision appealed
against in order to preserve the right of appeal.
There are remedies available to a party in whose favour the
determination or decision appealed against has been made for its enforcement in
the absence of an interim determination made by the Labour Court suspending the
determination or decision appealed against pending determination of the appeal.
The effect of the section is that it leaves the party in whose favour the
determination or decision was given with a right to enforce the determination
or decision appealed against by having it registered with the High Court or any
Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].
Section 92E(3) of the Act has no effect at all on the right
to appeal.
It leaves the appellant with a right to apply for an
interim determination suspending the execution of the determination or decision
appealed against. The right holder may exercise the right or choose not to do
so. He or she is not obliged to apply to the Labour Court for an interim
determination. The fact that a party has opted, in the exercise of discretion,
not to exercise a right given by law does not mean that he or she is guilty of
approaching the court with dirty hands. Both parties are equally protected by
the law as they have remedies available to them.
When the Labour Court refuses to hear an appeal on the
basis that the appellant has not complied with the determination or decision
appealed against, it is creating a remedy not provided for by the law.
The court a quo misapplied the principle of dirty hands to
the facts of the case.
The principle of dirty hands governs a situation where a
party is under a direct obligation imposed by law to act in a specific manner;
which obligation the party deliberately refuses to perform. It is a time
honoured principle based on the need for litigants who approach a court of law
seeking relief to do so with the required degree of truthfulness and honesty.
It does not apply in cases where the appellant fails to act in terms of a
determination or decision appealed against under section 92E of the Labour Act [Chapter
28:01] because he or she would not be
under an obligation to first comply with the
determination or decision appealed against in order to be heard.
The right to be heard by a court in proceedings that have
been properly instituted is a fundamental right that should not be lightly
denied to a party.
In this case, the appellant was not guilty of contempt of
court as suggested by the Labour Court because it was exercising the right to
appeal to the court given by law. The court was obliged to hear the appellant
in the appeal which was properly before it.
In the case of Zimbabwe Mining Development Corporation
& Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated
the following:
“The right of appeal is fundamental and critical to our
justice system. Where the law confers the right of appeal on a litigant it
should not be rendered nugatory or abrogated without due process. Due process
requires that a case proceeds to finality, namely, the giving of a judgment.
Once a judgment is given, the losing party who has a right to appeal is
entitled, if he so wishes to note an appeal.”
See also Claudius Marimo and Anor v The Minister of
Justice, Legal and Parliamentary Affairs SC25-06.
A party wishing to apply to the Labour Court for interim
determination pending determination of the appeal against an arbitral award
would have to consider the question whether the award appealed against is
enforceable. The party contemplating to have the award registered with the High
Court or Magistrates Court pending determination of the appeal by the Labour
Court would have to consider the same question.
In this case, the award was not sounding in money.
It simply directed payment of damages. The parties were
given the option of approaching the arbitrator in the event that they failed to
agree on the quantum of damages. It goes without saying that the award could
not be executed because the person in whose favour it was made could not even
register it. That explains why the respondent did not take steps to enforce the
award pending determination of the appeal notwithstanding the effect of section
92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant
was entitled, in the circumstances, not to apply for an interim determination.
If an arbitral award is patently ultra vires the
jurisdiction of the arbitrator or is for some reason not executable what would
happen if the Labour Court refuses to hear and determine the appeal on the
ground that the appellant must first comply with the award appealed against?
It is clear that the right to be heard in the determination
of the appeal noted in terms of the Labour Act remains extant even where an
interim determination in the matter of the determination or decision appealed
against is made.
At law, there cannot be a determination of an appeal
without a hearing.
If the right to be heard on appeal were to be denied to the
appellant on the ground that it had not applied for and obtained an interim
determination suspending execution of the arbitral award, it would mean that
the granting of an interim determination is obligatory when section 92E(3) of
the Labour Act [Chapter 28:01] is a discretionary provision. A party may apply
for an interim determination only when it realizes that there are chances of
the determination or decision appealed against being executed pending
determination of the appeal.
Section 92E(3) of the Labour Act is not limited to
applications for suspension of determinations pending the outcome of the
appeal. It is further not limited to interim determinations sought by a
litigant against whom the determination or decision appealed against was made.
A litigant in whose favour a determination was made, who is faced with an
appeal against the determination or decision, may seek an interim
determination.
If the court a quo's decision refusing to hear the
appellant on the basis that it had not complied with the order was based on a
sound principle of law, it would mean that the order would never be enforced
and there would never be an appeal.
What is worse is that the court a quo dismissed
the appeal instead of removing it from the roll.
