“This
matter demonstrates the challenges which emerge from parties pursuing
the same issue before different judges who may each be seized with
different aspects of their appeals. The result is divergent judgments
from the same court.
Whereas
CHIVIZHE J made a finding that bonus is payable at the discretion of
the employee and is not an entitlement, I made the decision that, in
this case, it was a contractual entitlement given the circumstances
of the case…,.”
The
above remarks, made by the court a quo in its ruling granting the
appellant leave to appeal in this matter, aptly summarises the
situation that arises in this appeal. Two conflicting judgements were
handed down by the Labour Court regarding whether or not the
appellant is liable to the respondent for the payment of bonus and
damages related to bonus.
The
two judgments were given on different dates. One was given in an
appeal against an award by
an arbitrator on the merits of the award. The other was given in a
judgment quantifying the award.
The
latter, handed down on 3 June 2017, quantifying and awarding a bonus
shortfall and damages in respect of the bonus to the respondent, is
the subject of this appeal.
The
facts giving rise to this appeal are largely common cause. In 2008,
the respondent was employed by the appellant as a Sales and Marketing
Manager. On 1 June 2010, he was moved to operations as a Manager.
Feeling side-lined and demoted by this move, he reported the matter
to a labour officer. Failing conciliation, the matter was referred to
arbitration. On 11 October 2011, the arbitrator ordered, inter alia,
that the respondent “suspends the demotion exercise” and
negotiate a new contract with the respondent. He further ordered that
in the event that the parties failed to negotiate a new contract,
they were to negotiate the quantum of damages payable to the
respondent in lieu of reinstatement to his former position as Sales
and Marketing Manager.
Quite
separately, and as a substantive order, the arbitrator ordered that
the respondent be paid, as a bonus, an amount equivalent to 30
percent of his salary, less any payments made over the period of
employment as a 13th
cheque.
The
appellant appealed against the substantive award of a bonus to the
respondent, arguing that the respondent was not entitled to a bonus.
Whilst
that appeal was pending, the respondent approached an arbitrator for
quantification of the damages due to him in terms of the entire
award. This he did on the basis, firstly, that the parties had failed
to agree on both the terms of a new contract and the damages payable,
and, secondly, that the appellant had not applied for an order
suspending the operation of the award after filing the appeal. He
contended that he was within his rights to have the damages awarded
quantified notwithstanding the noting of the appeal against the award
of the bonus.
Agreeing
with him, the court a quo quantified the damages due to the
respondent in the sum of US$104,829=52. The appellant noted an appeal
against this second award.
On
4 July 2014, the award was set aside in part. The part of the award
finding the appellant liable to pay the bonus and damages in relation
to the bonus was upheld. The exact amount payable under this head was
to be calculated at a given rate, and, in the event that the parties
failed to agree on the quantum, they were to approach the court for
quantification. The parties failed to agree, and, as invited in the
order, approached the court a quo for quantification.
At
the hearing of the application for quantification, it was brought to
the attention of the court a quo that the appeal against the first
award, on the merits, had been successful. In particular, it was
brought to the attention of the court a quo that the Appeal Court had
determined that the appellant was not liable to pay the respondent a
bonus.
Proceeding
in the face of this advice, the court a quo quantified the unpaid
bonus and damages related to the unpaid bonus and ordered the
appellant to pay to the respondent the sums of $31,134=86 and
$23,022=16 as bonus shortfall and damages respectively.
Aggrieved
by the above order, the appellant noted this appeal attacking the
court's decision to order payment of the bonus shortfall and
damages in respect of the bonus when the liability to do so had been
set aside by the Appeal Court.
The
sole and crisp issue that falls for determination in this appeal is
whether or not the court a quo was correct to proceed to quantify the
unpaid bonus and damages related to the bonus in the face of an
earlier judgment finding that the respondent was not entitled to
these.
In
making the order that it did in the circumstances of the matter, the
court a quo had this to say:
“The
judgment by my sister CHIVIZHE J is not binding on me. My decision of
4 July 2014 is extant. It was not successfully appealed against. It
is the basis for this quantification.”
It
is apparent from the above that the court a quo believed, firstly,
that, the judgment by CHIVIZHE J, the Appeal Court, absolving the
appellant from liability to pay the bonus was not binding on it, and,
secondly, that it had properly and competently made an order
regarding the liability of the appellant to pay a bonus to the
respondent on 4 July 2014. In consequence, it further believed that
since its order in this regard was still extant and had not been
appealed against, it could competently proceed to quantify the bonus
shortfall and the attendant damages.
An
appropriate starting point would be to note, in passing, that a
judgment does not belong to the judge who authors it. It is a
judgment of the court to which the judge is appointed. Once it is
correctly viewed that judgments are passed by the institution and not
the individual members who constitute the court, sentiments tending
to denote personal claims to judgments, as are to be discerned in the
judgment a quo, become clearly misplaced.
Further,
had the court a quo correctly viewed the judgment as belonging to the
institution and not as belonging to the individual judge, this would
have taken away the personal affront that the court a quo clearly
felt when it was advised that the court, sitting on appeal on the
merits of the award, had ruled that the respondent was not entitled
to a bonus, contrary to its own views and contrary to what it
believed was its own finding.
Whilst
the court a quo did not articulate the reason why it believed that
the judgment by the Appeal Court was not binding on it, the argument
was advanced, on appeal, and on behalf of the respondent, that both
courts enjoyed parallel jurisdiction and therefore the previous
decision of one was not binding on the other. Reliance in this regard
was placed on the provisions of the rules of the Labour Court, 2006
which were in use when the judgment was written, and which, in Rule
35, provided:
“Where
a case similar or identical to the one being heard by the court has
been previously decided, any principle by the case shall have
persuasive authority.”
This
rule, in effect, reinforced the principle of stare decisis in its
horizontal application.
With
respect, the situation that was before the court a quo did not fall
to be resolved by the application of the principle of stare decisis -
either horizontally or hierarchically. The situation before the court
a quo was not an instance where one court of parallel jurisdiction
was being called upon to adopt or apply a principle that had been
discovered and applied by an earlier court. It could not, and was
not, suggested that the Labour Court, sitting on appeal against the
merits of the award, was higher in ranking than the court a quo. It
was not conceivably the situation that the two courts were
determining similar issues and were being called upon to be
consistent in their findings unless there was a basis for departing
from the earlier finding.
This,
in essence, and very briefly, is what the doctrine of the stare
decisis postulates.
To
the contrary, the situation that was before the court a quo was
simply an instance where the same court was being called upon to make
pronouncements, at different times, on two components of the same
cause of action. The one dealt with the issue of liability whilst the
other was supposed to deal with the quantification of that liability
- only in the event that liability was established.
Reliance
for the argument advanced on behalf of the respondent was also sought
from the decision in Matanhire v BP Shell Marketing Services SC05-05
where this Court was faced with two conflicting decisions of the same
court over the same issue. In resolving the issue that was before it
in that matter, this court applied the basic principle that once a
matter has been finalised by a court, that court becomes functus and
thereby loses authority and competence to adjudicate on the matter
again.
Again,
with respect, the ratio in Matanhire v BP Shell Marketing Services
SC05-05, is not of assistance to the respondent at all.
An
analysis of the two decisions before the court a quo shows that the
decision of the Appeal Court, absolving the appellant from liability,
was a stand-alone judgment. It was complete in itself. It was
properly and competently sought and obtained. It therefore became
extant and was not only binding on the parties to the dispute - but
on the court itself.
If
it is again correctly viewed that judgments belong to courts and not
to the individual authors, then it is easy to find that the judgment
on liability became binding on the entire Labour Court. This would
include the court a quo.
On
the basis of the ratio in Matanhire v BP Shell Marketing Services
SC05-05, the Labour Court became functus on the issue of the
liability of the appellant to pay bonus to the respondent once this
judgment was handed down. It follows that the Labour Court, as an
institution, no matter how constituted, could not pronounce on the
issue again.
Viewed
in this light, the assertion by the court a quo that it was not bound
by the earlier judgment loses all colour and must accordingly be
rejected.
Quite
apart from the above, the judgment by the Appeal Court judge was
binding on the court a quo not because of any ranking of the courts
but because it resolved the issue of liability whilst the court a quo
was seized with the quantification of that liability.
Liability
always precedes quantification of that liability. Put differently,
damages are not payable in a vacuum. They rest on an obligation
which, in turn, gives content to the liability. In the absence of an
obligation, there can be no competent order for the payment of
damages even if quantification was done prior to a determination of
the liability. Therefore, where liability and quantification of that
liability are determined at different times, as in casu, the
judgement on liability will precede and be binding on the court
seized with quantification.
This
is logical and is akin to placing the proverbial horse in front of
the cart.
The
judgement by the Appeal Court was always the horse and no matter how
late it arrived at the scene, the cart, represented herein by the
court a quo, had to recognise and yield to it.
It
stands to reason, and calls for no authority, to hold that once the
Appeal Court had decided and held that the appellant was not liable,
as alleged, there was no liability to be quantified by the court a
quo - or any other court for that matter.
A
judgment on liability will always take precedence over and trump,
where necessary, the judgment quantifying the damages due to the
claimant not because of any ranking of the courts but because the one
aspect naturally and logically precedes the other to complete the
cause of action under the law of damages.
From
its ratio decidendi, it is easy to establish where the court a quo
fell into error.
It
viewed the decision of the court on 4 July 2014, which it
appropriated as its own, as a judgment on the liability of the
appellant. It was not. It is common cause that on 4 July 2014, the
court a quo sat as an Appeal Court against the award quantifying the
damages due to the respondent. At that time, the appeal against the
award on its merits regarding the respondent's entitlement to bonus
had been noted and was pending before another court of competent
jurisdiction. Quantification of the award, including quantification
of parts of the award that had been appealed against proceeded
notwithstanding the noting of the appeal as this is permissible at
law in this jurisdiction.
It
is not in dispute that at all times the court a quo was seized with
the quantification of the award. At no stage was it seized with the
appeal against the award on its merits.
In
July 2014, when it handed down the judgment that it sought to rely
on, the court was not called upon to determine, and did not
determine, the liability of the appellant to pay the respondent a
bonus. It was called upon to determine the correctness or otherwise
of the various amounts that the arbitrator had ordered the appellant
to pay to the respondent under various heads.
It
is also common cause that in its order of 4 July 2014, the court a
quo specifically upheld the award of the arbitrator granting bonus to
the respondent. This it did, as stated above, sitting on appeal
against the quantum of such an award.
The
point that may seem to cloud issues is whether or not the court a
quo, sitting as an Appeal Court on the quantum of the award, could
also determine the merits of the matter and find, as it believes it
did, that the order by the arbitrator finding the appellant liable
for bonus payments to the respondent was correct.
Clearly
it could not. The court a quo could not make such a decision as there
was no appeal before it on the merits of the matter. That appeal was
properly before another court. The “finding” of the court a quo
confirming the correctness of the arbitrator's finding on liability
was of no legal import for want of jurisdiction.
Consequently,
the court a quo could not rely on this to base its purported
quantification of a non-existent obligation or liability.
On
the basis of the foregoing, it is my finding that there is merit in
the appeal. I am in total agreement with the sole ground of appeal
raised in this appeal. The court a quo erred at law and misdirected
itself by holding that in the face of the judgment of the Appeal
Court, absolving the appellant from liability, it could still make an
award in favour of the respondent.
Accordingly,
I make the following order:
1.
The appeal is allowed with costs.
2.
Paragraphs 3 and 4(b) of the judgment a quo are hereby set aside.
