This
is an urgent chamber application in which the applicant seeks a
provisional order staying execution of a default judgment issued
against him under case number HC8062/10.
The
applicant and the first respondent have a longstanding dispute that
was determined through arbitration but has now spilled to the High
Court, the Labour Court, and the Supreme Court.
The
applicant was employed by the respondent as a Human Resources Officer
responsible for Chipinge and Mutare. He approached the Labour Officer
complaining of underpayment and constructive dismissal. The Labour
Officer, in turn, referred the matter for determination by compulsory
arbitration in terms of section 93(5)(a) of the Labour Act [Chapter
28:01]. The issues referred for determination were framed as follows:
1.
Whether employee was underpaid and was not paid productivity
incentive for the quarter two of 2010 and the remedy thereof.
2.
Whether there is an element of constructive dismissal when the
employee tendered his resignation.
The
matter went before the independent arbitrator, Mr. Mutongoreni, who
issued the following arbitral award on 18 November 2010;
“Wherefore,
after hearing this case, I make the following order:
1.
That the employee was underpaid and he must be paid a total of
$38,295= as underpayment during the period 1999 to 31 August 2010.
2.
That the employee was not paid productivity incentive for quarter two
and three and hence must be paid the same totalling $3,273=04.
3.
There was constructive dismissal when the employee tendered his
resignation letter and he must be reinstated on his job without loss
of salary and benefits and if reinstatement is no longer tenable he
be paid damages amounting to $41,040=.
4.
That in total he be paid $82,608=04.
5.
That the employee be allowed to purchase the vehicle he was using in
terms of the company policy.
6.
That he be allowed to stay in the company house and in an event (sic)
that the employer found reinstatement no longer tenable he only
vacate (sic)
after at least half of his benefits are paid.”
There
being no compliance with the above order, the applicant sought to
enforce the arbitral award by registering it in the High Court for
enforcement in terms of
the Labour Act [Chapter 28:01].
The first respondent's Corporate Services Director, one M.N.
Ndawona, responded, through an undated letter, offering the
respondent reinstatement. The letter reads:
“Dear
Mr. Dzirutwe,
Re:-
DAIRIBORD
ZIMBABWE LIMITED & YOURSELF
We
are informed by our lawyers that you have filed an application with
the High Court alleging Dairibord Zimbabwe Limited's non-compliance
with the arbitral award.
There
was clearly a failure in our communication channels. We instructed
our lawyers back in 2010 that since the termination was never
instigated by us and since the Arbitrator gave reinstatement as an
alternative you will be reinstated to your old position. We are not
too certain how this was not done.
Kindly
note that we have opted for reinstatement as afforded by the
Arbitrator. You must report to the office of the Human Resources
Manager, Harare within five days of this letter. You should liaise
with the Chipinge dairy for your fuel requirements for this trip.
Please ensure that you bring the car allocated to you for inspection
in view of the accident it was involved in and for a general
assessment.
We
welcome you back and look forward to a good working relationship of
course subject to the legal challenges.
Signed.
M.N.
NDAWONA
CORPORATE
SERVICES
DIRECTOR”
Despite
having written to the applicant advising him that it had complied
with the arbitral award by reinstating the applicant, the respondent
nevertheless appealed against the award to the Labour Court, and,
ultimately, to the Supreme Court. While the matter was still pending
on appeal it applied, in the Magistrates Court, for an order to evict
the applicant and reclaim the motor vehicle in dispute. In its
application, the respondent did not disclose that the dispute was the
subject of litigation on appeal and that the applicant had already
obtained a lawful binding arbitral award authorising him to stay in
the house and retain the motor vehicle as specified in the arbitral
award.
The
respondent's claim however failed in the Magistrates Court and it
launched the same claim in the High Court under case number
HC8602/10. In the High Court, the respondent, again, did not disclose
that the applicant had received an arbitral award reinstating him
without loss of salary and benefits. More importantly, it did not
disclose that it had, in terms of the above letter, agreed to
reinstate him. Despite the above non-disclosures the respondent
managed to obtain default judgment against the applicant in case
number HC8062/10.
In
my view, in light of the above concerns, the ends of justice can only
be met by maintaining the status
quo ante
until such time the applicant's application for rescission of
judgment has been determined by the court. Doing otherwise will cause
irretrievable prejudice should the applicant succeed in the High
Court, and, ultimately on appeal. The balance of convenience
therefore favours the applicant….,.
For
the foregoing reasons, the application can only succeed. It is
accordingly ordered that a provisional order be and is hereby granted
in terms of the draft order filed of record.
