Opposed
Application
MATHONSI
J:
This application is made in terms of Art 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 $87,640-00 made up
of:
(i)
$1,400-00 May 2003 salary;
(ii)
$50,400-00 damages;
(iii)
$35,000-00 pension contributions; and
(iv)
$840-00 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 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
$35,000-00 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 10 pages to which is attached
another 8 paged document called 'Zimbabwe All Industry Salary
Survey.'
The
applicant complains that the documents contains 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 $35,000-00 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.
Let
me deal first with the point raised in
limine
relating to the non-joinder of the arbitrator.
Mr
Mpofu
conceded that the arbitrator should have been cited in the
application as it is her award which is being impugned. While
regretting the non-joinder he submitted that it is not fatal to the
application especially as there is nothing in Art 34 of the Model
Law, in terms of which the application was filed, requiring the
citation of the arbitrator.
Mr
Mpofu
also submitted that the application cannot be defeated by reason of
the non-joinder of the arbitrator considering the provisions of Rule
87(1) of the High Court of Zimbabwe Rules, 1971 that:
“No
cause or matter shall be defeated by reason of the misjoinder or
non-joinder of any party……………”
After
we had exchanged a few “war stories” Mr Mpofu
conceded that Rule 87 does not apply to application procedure,
falling as it does under Order 13 dealing with actions.
He
however, robustly submitted that I must take a cue from that rule
especially given that there is no rule whatsoever providing for
joinder in applications.
I
agree.
In
fact the issues before me are capable of determination in the absence
of the arbitrator. I will therefore, allow the matter to proceed
without the citation of the arbitrator.
Regarding
the existence of an appeal to the Labour Court I agree with Mr Mpofu
that an art 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.
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 Art 34(2)(a)(ii) of the Uncitral 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 (as he then was) in
Myers
v Abramson
1952 (3) SA 121 (C) 127 C-E (quoted with approval by GUBBAY CJ in
Gauntlet
Security Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583 (S) 586F-G) 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 Mr Mpofu
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.
I
must however express my profound disappointment at the unacceptable
delays that have occurred in this matter.
This
dispute started more than 10 years ago and is still simmering now.
Surely there can be no excuse for delaying a labour dispute for such
a lengthy period of time.
The
respondent, who I must add, presented very sound and reasoned
arguments which on any day may turn a lot of legal practitioners
green with envy, complains bitterly about the delay which she says
has been orchestrated by the employer to frustrate her into
abandoning her claim. She has drawn my attention to the sentiments
made in Khoza
v Sasol Ltd
where court stated:
“I
am satisfied that Mr Hinds and his office were grossly remiss, and
that the employee, who all of this time was wallowing in poverty and
in unemployment, was more than justified in approaching this court
for relief rather than wait for the rusty old train of Sasol that
takes its own time in its delivery of justice. I have yet to
encounter a worse case where there is a more callous disregard of the
prejudice that an employee suffers when the wheels of justice are
deliberately slowed down by a resort of obfuscation by those who
flaunt their financial muscle in what appears to be an obscene game
of cat and mouse in which the only loser can be the employee. In the
unequal contest between a multi-billion rand empire that the employer
is, and an unemployed person, as was submitted by Mr Spoor, all you
have to do is to wear down the resolve of your less endowed opponent,
tire him out and hope that he will go away, his quest for justice
abandoned. Delay the day when he can get justice, and you can then
thereby deny him justice.
I
disagree.
As
long as the courts are open and as long as they purport to be the
arbiters of fairness and justice, between the powerful and the
relatively powerless, so long will they not allow the sort of conduct
displayed by the employer in this case to go without consequences.”
I
associate myself fully with those remarks.
This
matter ought to be brought to finality without further delay. The
respondent has done everything within her power to achieve that
including the binding of the record, the application for set down and
payment of security for service of the notices of set down as if she
was the applicant. Throughout all that process the applicant remained
unconcerned giving credence to the view that the applicant would like
to perpetuate the matter endlessly.
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.
Gill,
Godlonton & Gerrans,
Applicant's Legal Practitioners
