This
application is made in terms of Article 34 of the Uncitral Model Law
which is a schedule to the Arbitration Act [Chapter
7:15]
for the setting aside of an arbitral award issued by the arbitrator,
K. Segula, on 29 July 2014, in terms of which she quantified the
respondent's damages in lieu of reinstatement as $87,640= made up
of $1,400= May 2003 salary, $50,400= damages, $35,000= pension
contributions and $840= cash in lieu of leave.
The
applicant employed the respondent as a Personal Assistant to its
President and Chief Executive Officer from 2 September 2002. The
relationship between the parties deteriorated when the respondent
complained of sexual harassment by her immediate superior. The
employment contract was terminated giving rise to a labour dispute
which eventually went to arbitration.
On
24 March 2014, the arbitrator issued an arbitral award, the import of
which was that the respondent had been unfairly dismissed. It is not
clear from the papers why the matter took almost 10 years to finalise
if indeed the respondent had been dismissed on 19 June 2003. Whatever
the case, the applicant did not reinstate the respondent
necessitating a second hearing before the arbitrator for purposes of
quantification of damages due to the respondent.
The
quantification hearing occurred on 10 June 2014, but not before the
applicant had, on 17 April 2014, noted an appeal against the initial
award to the Labour Court. At the conclusion of oral submissions, the
parties agreed to make written closing submissions. The applicant's
legal practitioner undertook to submit his on 16 June 2014 after
which the respondent was to submit hers. The period was later
extended by the arbitrator as a result of which the applicant's
submissions were to be filed by 25 June 2014 with the respondent
obliging on 30 June 2014. The closing submissions were, eventually,
filed by both parties and the arbitrator quantified the damages and
delivered her award aforesaid on 29 July 2014.
Problems
started again. The applicant appealed against the second award to the
Labour Court. The applicant also launched this application for the
setting aside of the award.
In
its founding affidavit deposed to by its Finance Manager, McShaman
Kembo, the applicant stated that the award ought to be set aside on
two (2) grounds, namely;
(i)
That it deals with a dispute not contemplated by or not falling
within the terms of the arbitration, or contains decisions on matters
beyond the scope of the arbitration in that while the arbitrator was
only seized with the issue of damages in lieu of reinstatement she
had gone beyond her mandate by dealing with and awarding a sum of
$35,000= in respect of pension contributions.
(ii)
The second ground is that the award is in conflict with the public
policy of Zimbabwe in the sense that there was a breach of the rules
of natural justice, in particular the audi
alteram partem
rule in that after the parties had made oral submissions the
arbitrator allowed the respondent to produce further evidence which
she went on to rely upon without according the applicant an
opportunity to respond. The evidence was in the form of a lengthy
document with the title “Application in support of quantification
of damages.” The write up itself is ten (10) pages to which is
attached another eight (8) paged document called 'Zimbabwe All
Industry Salary Survey.'
The
applicant complains that the documents contain evidence which was not
made available at the oral hearing of 10 June 2014 and that, as a
result, it did not respond to it. Significantly, the arbitrator went
on to rely on that unrebutted evidence in awarding the respondent
damages in lieu of reinstatement and $35,000= as pension
contributions.
The
respondent opposed the application, and, in her lengthy opposing
papers, she complained about the non-joinder of the arbitrator in the
proceedings and disputed having introduced new evidence to the
prejudice of the applicant.
According
to her, all that is contained in her submissions dated 30 June 2014,
which I have already cited, was available at the hearing on 10 June
2014. If the applicant had chosen not to address those issues in its
closing written submissions, that should certainly not be her
problem. To the respondent, the application is another ruse being
employed by the applicant to deny her justice and to wear her down.
At
the hearing, the respondent, however, conceded that the issue of
pension contributions was not only outside the scope of the
arbitration, it had also not been brought up at the hearing on 10
June 2014. That notwithstanding, the arbitrator made an award for
it….,.
Regarding
the existence of an appeal to the Labour Court, I agree with counsel
for the applicant that an Article 34 application is available to a
litigant outside the appeal procedure and now that section 171(1)(a)
of the Constitution of Zimbabwe has reinstated the jurisdiction of
this court on labour matters, which had been ousted by the provisions
of section 89(6) of the Labour Act [Chapter
28:01],
there is nothing stopping me from exercising jurisdiction.
Section
171(1)(a) of the new Constitution provides:-
“The
High Court has original jurisdiction over all civil and criminal
matters throughout Zimbabwe.”
To
the extent that the Constitution overrides any Act of Parliament,
there can scarcely be any doubt that section 171(1)(a) overrides
section 89(6) of
the Labour Act [Chapter
28:01].
What
this means is that by clear Constitutional provision, this court has
original jurisdiction over all matters, including those of a labour
nature, where, prior to the new Constitutional order, the Labour
Court enjoyed exclusivity.
Considering
that this matter has been set down and argued before me while the
appeal is still pending in the Labour Court, it is expedient that I
indulge the parties and determine the matter.
In
terms of Article 34(2)(a)(ii) of the Unictral
Model Law:
“An
arbitral award may be set aside by the High Court only if the party
making the application furnishes proof that the award deals with a
dispute not contemplated by or not falling within the terms of the
submission to arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration, provided that, if the
decision on matters submitted to arbitration can be separated from
those not submitted, only that part which contains decisions on
matters not submitted to arbitration may be set aside.”
That
Article allows a severance of the offending part of the award where
appropriate.
It
is therefore apparent that this court is empowered to set aside a
portion of an award and uphold another portion in appropriate
circumstances. The respondent has conceded that the issue of pension
fell outside the terms of reference of the matter to arbitration; the
arbitrator having only been requested to determine the respondent's
damages in lieu of reinstatement.
Indeed,
pension contributions cannot, by any measure, be regarded as falling
within the ambit of damages, which VAN WINSEN J…, in Myers
v Abramson
1952 (3) SA 121 (C)…, (quoted with approval by GUBBAY CJ in
Gauntlet
Security Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583 (S)…, defined as:-
“The
measure of damages accorded such employee (a wrongfully dismissed
one) is, both in our law and in English law, the actual loss suffered
by him represented by the sum due to him for the unexpired period of
the contract less any sum he earned or could reasonably have earned
during such latter period in similar employment.”
In
my view, the concession made by the respondent in respect of the
award for pension contributions was proper. I would otherwise set
aside only that part of the award but there is also merit in the
submissions made by counsel for the applicant regarding the evidence
which was allowed by the arbitrator post hearing of the matter.
As
I have said, after the parties had agreed to make written closing
submissions, the respondent went on to submit further evidence -
including documentation attached to the written submissions. There
was really nothing wrong with that considering that she was
self-acting and a lay person. It was, however, incumbent upon the
arbitrator, having taken such evidence, to allow the applicant to
respond.
She
did not.
Instead,
the arbitrator went on to rely upon such evidence in determining the
matter. A whole array of correspondence was thrown in after the
hearing, including allegations of publication of the matter in the
Daily
News
of 6 September 2002 and other issues relating to outstanding leave. I
do not agree with the respondent that all this information was
already available at the time of the hearing. If it was, there would
have been no need to re-submit it via the written closing
submissions.
Article
34(5) of the Model Law seeks to clarify what would be regarded as
being in conflict with the public policy. It provides:-
“For
the avoidance of doubt, and without limiting the generality of
paragraph (2)(b)(ii) of this article, it is declared that an award is
in conflict with 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.”
One
of the basic tenets of the rules of natural justice is the audi
alteram partem
rule, which enjoins every adjudicating authority to hear the other
side before determining the matter. There can be no doubt that the
arbitrator fell foul of that rule. To that extent there is no
alternative but to interfere with the award….,.
The
basis of setting aside of the award cannot be blamed on the
respondent. She therefore cannot be visited with costs. The
arbitrator, who is to blame, was not cited.
In
the result, IT IS ORDERED THAT:-
1.
The arbitral award issued by the arbitrator, K Segula, dated 17 July
2014, is hereby set aside.
2.
The quantification of damages in lieu of reinstatement is hereby
remitted to the same arbitrator for a hearing de
novo
within fourteen days of this order.
3.
Each party shall bear its own costs.
