The
appellant lodged an appeal against the Magistrates Court decision
wherein the court a
quo
registered an arbitral award.
The
appellant relied on the following grounds of appeal;
1.
That the award was made in the absence of jurisdiction on the part of
the arbitrator and that the dispute was therefore not capable of
resolution through arbitration.
1.1
The provisions of the Labour Act, in section 63(3)(b), make it clear
that a Labour Officer cannot have jurisdiction over a matter with
which a Designated Agent is seized. The Labour Officer did not
therefore have jurisdiction to entertain the complaint, resultantly,
he did not have the jurisdiction to refer the matter to the
arbitrator.
1.2
Section 93(7)(b) of the Labour Act stipulates that where a Labour
Officer (or Designated Agent) fails to finalise a dispute within 30
days of it being referred to him or her, either of the parties may
refer the matter to the Labour Court. The matter should therefore
have been referred to the Labour Court and not to a Labour Officer
once the 30 day limit was exceeded.
1.3
Section 105(6) of the Labour Act, on which the arbitrator relied to
found jurisdiction, applies not to complainants of unfair labour
practices but to disciplinary proceedings.
2.
The court a
quo
accordingly erred in failing to find that by virtue of the fact that
the arbitrator had no jurisdiction to hear the matter the dispute was
not capable of settlement through arbitration in terms of the laws of
Zimbabwe and that the court was therefore bound by provisions of
Article 36(1)(b)(1) of the Arbitration Act to decline to register the
award.
3.
The court a
quo
furthermore erred in failing to find that the dispute fell within the
ambit of the provisions of Article 36(1)(b)(ii) of the Arbitration
Act which provides that a court should refuse to register an award
where the award is against the public policy of Zimbabwe. It was
demonstrated to the court that the award is against the public policy
of Zimbabwe. It was demonstrated to the court that the award was
grossly irrational to the extent that it would be contrary to the
public policy of Zimbabwe to register same on the basis that:
3.1
The respondent herein was awarded a salary for the period January to
June 2012, when, by her own admission, she was not performing her
duties at all between January and May 2012; and
3.2
Furthermore, the award was grossly irrational in that the respondent
was awarded a salary for the month of June 2012 when the evidence on
record demonstrated that the contract of employment had been
terminated on 24 May.
4.
The court a
quo
furthermore erred in giving judgement without giving any reasons for
the decision. A judgment without reasons is a legal nullity.
The
brief history of the matter is that the appellant and the respondent
were in employer employee relationship. The respondent presented
documentation from her doctor wherein it was recommended that she
should be given duties which would not entail sitting for long hours.
The respondent was employed as a till operator. Following the
doctor's recommendations, when assigned to till operation by the
appellant she could not take up her duties. The discord culminated in
non-payment of salary and/or wages. The respondent then approached a
Designated Agent of the National Employment Council with a complaint.
The relevant section 63(3)(a) and (b) clearly spells out that where a
Designated Agent is authorised to redress any dispute or unfair
labour practice in terms of subsection 3(a) no Labour Officer shall
have jurisdiction over the matter.
A
reading of the section is clear that a Designated Agent has
jurisdiction over a matter to the exclusion of any Labour Officer
only when the matter is still within 30 days time from the date of
notification. The legislative intention here being, inter
alia,
to exclude parallel process to encourage exhaustion of domestic
remedies but certainly the mention of the time frame is important and
worth noting, signifying the matter cannot be indefinitely held in
abeyance before a Designated
Officer.
This is fortified in section 101(6) of the Labour Act [Chapter 28:01]
which is instructive and reads -
“If
a matter is not determined within thirty days of the date of
notification referred to in para (e) at subsection 3, the employee or
employer concerned may refer such a matter to a labour officer, who
may determine or otherwise dispose the matter in accordance with s
93.1.”
It
is in compliance with the law that the matter was referred, after
certificate of no settlement, to the arbitrator. This disposes of the
first ground of appeal.
A
Designated Agent failed to resolve the matter within the 30 days
statutory requirement and referred the matter to the Labour Officer
who issued a certificate of no settlement and referred the matter for
arbitration. The arbitrator determined the matter and issued an
award. It is that award which the respondent sought to register for
enforcement purposes. The magistrate duly registered the award and it
is that registration which is subject of this appeal.
