OPPOSED
APPLICATION
CHATUKUTA
J:
The applicant is an ex-employee of the respondent.
A
dispute between the applicant and the respondent was referred for
arbitration. On 28 June 2012, Justice Smith issued an arbitral award
in favour of the applicant. The award set the amounts due to the
applicant as salary for August 2007 and severance package in the sum
of US$7,000.00 and US$42,000.00 respectively. The applicant was also
awarded cash-in-lieu of leave. However, the amount due was not
quantified in the award.
The
applicant filed an application in 2012 under case number HC11614/12
seeking the registration of the arbitral award.
The
application was dismissed with costs on 19 August 2015 on the basis
that the arbitral award, in so far as it related to payment of
cash-in-lieu of leave, was not sounding in money. The award was not
severable and therefore not capable of registration.
The
applicant referred the matter to Justice Smith for quantification of
the award. On 13 October 2015, the arbitrator amended the award with
the addition of the amount due as cash-in-lieu of leave in the sum of
US$26,329.55.
This
is an application for the registration of the amended award. The
draft order reads:
“1.
The arbitral award issued on 28 June 2012 by Arbitrator L G Smith and
as amended by his award of 13 October 2015 be and is hereby
registered.
2.
The Respondent shall pay net of PAYE the following amounts:
(a)
US$7,000.00 being Applicant's salary for August 2007.
(b)
US$42,000.00
(c)
US$26,329.55 being cash in lieu of leave.
3.
The Respondent shall pay interest on the above amounts from the date
of registration of the award to the date of full payment.
4.
The Respondent shall pay the costs of this application.”
The
applicant contended that P.A.Y.E was required to be deducted from the
award as the award arose from his employment with the respondent. The
amounts awarded were therefore deemed to exclude P.A.Y.E.
The
applicant abandoned this argument and sought an amendment to the
draft order with the deletion of any reference to P.A.Y.E in
paragraph 2 of the draft.
The
abandonment was, in my view, proper as the award issued by the
arbitrator did not include any reference to P.A.Y.E. Consequently, it
serves no purpose to consider the arguments by both parties on the
issue.
After
the abandonment of the question of P.A.Y.E, the application was
opposed on the ground that it was contrary to public policy as
envisaged in Article 36 of the Model Law in the Arbitration Act
[Chapter
7:15].
The
respondent submitted firstly, that the arbitrator did not have the
jurisdiction to render the arbitral award.
In
terms of Article 33 of the Model Law, he could only interfere with
his award upon request by either party within 30 days of the issuance
of the order failing which he could only do so with the consent of
both parties.
The
award was handed down on 28 June 2012. The amendment was effected on
15 October 2015, over three years later. The respondent did not give
its consent to the amendment.
The
arbitrator was functus
officio.
The
award was therefore a nullity and not registrable.
Secondly,
it was not clear which order the applicant sought to be registered,
the award issued on 28 June 2012 or the amendment of 15 October 2015.
Thirdly,
the claim for cash in lieu of leave had prescribed and that the award
not being an order of court and having been issued on 28 June 2012
had superannuated.
In
response, the applicant submitted that he had met the requirements
for registration of the award. The application before the arbitrator
was not for the amendment or correction of the award issued on 28
June 2012.
The
arbitrator therefore had jurisdiction to proceed with the
quantification. It was for quantification following the decision by
MAFUSIRE J in case number HC11614/12 that the award was incomplete.
The
amount due as cash-in-lieu of leave was common cause as it would be
derived from a pay slip issued to the applicant by the respondent.
The
award that was sought to be registered is apparent. It was the award
issued on 28 June 2012 as quantified on 13 October 2015 following the
decision by MAFUSIRE J in HC11614/12.
The
claim had not prescribed as a determination had been made by the
arbitrator and the applicant had been awarded cash in lieu of leave.
The entitlement of the applicant to cash-in-lieu of leave had been
asserted and determined. Only the quantification thereof remained
which quantification was supposed to be common cause.
There
is a prethora of decisions of this court that deal with the
requirements for registration of an arbitral award as set out in
section
98(4)
of the Labour Court Act [Chapter
28:01].
(See Greenland
v Zimchre
HH93/13; Tapera
v Fieldspark (Pvt) Ltd
HH102/2013;
Nssa
v Mandiringa
HH98/2005;
Mvududu
v Agricultural and Development Authority (ARDA)
2011
(2) ZLR 449; Samudzimu
v Dairibord Holdings Ltd
2010 (2) ZLR 357.
In
Mvududu
v Agricultural and Development Authority (ARDA)
BHUNU
J (as
he then was) remarked at 451F–452B that:
“The
respondent is resisting the registration on the basis that the
applicant cannot seek to enforce a judgment he has appealed against.
There are two cardinal issues for determination in this application.
The first issue is whether the applicant is automatically as a matter
of right entitled to register an award upon satisfying the conditions
specified in section 98(14) of the Act. In order to qualify for
registration all what an applicant has to do is to satisfy the court
that:
(a)
He is a party to the arbitral proceedings.
(b)
The award relates to him.
(c)
The copy he is presenting for registration has been duly certified by
the arbitrator in terms of subs (13).
Once
the applicant has satisfied the above three requirements he is
entitled as of right to register the arbitral award in terms of s
98(14) as read with subs (13).
Any
opposition to registration is therefore limited to showing that the
applicant has not satisfied any one or more of the three prescribed
requirements for registration.”
In
fact, the respondent referred with approval in paragraph 22 of its
supplementary heads of argument to the following remarks of CHIWESHE
JP in Samudzimu
v Dairiboard Holdings Ltd (supra)
at 360D-E that:
“Accordingly,
for as long as the arbitral award has not been suspended or set aside
on review or appeal in terms of the Labour Act, there is no basis
upon which this court may decline registration of the same.”
It
is my view that the three requirements for registration, with an
additional requirement that the award must be extant, have been met
in the present application.
It
is not in issue that all the issues raised by the respondent in the
present application are issues that it raised before the arbitrator.
The
arbitrator deliberated on the issues and made a finding that they all
lacked merit.
The
course of action available to the respondent ought to have been to
challenge the decision of the arbitrator on appeal.
It
failed to do so and it is an abuse of court process for the applicant
to circumvent that process by raising the same issues through the
back door.
Both
parties rightly submitted that in the event that this court was to
decline to register the award, the same would remain extant.
The
respondent would still be required to comply with the award.
The
submission by the respondent that
the award is extant is inconsistent with its submission that the
award is a nullity.
In
any event, it is surprising that the respondent has not taken the
initiative to take the appropriate action to challenge the award. Its
inaction and its opposition to the registration of the award is
clearly an attempt to avoid the unavoidable.
The
question of cash-in lieu of leave has been resolved by the
quantification by the arbitrator. The respondent has not appealed
against the award or sought its setting aside.
It
is accordingly ordered that:
1.
The Arbitral Award issued by Justice Smith on 28 June 2012 and fully
quantified 13 October 2015 be and is hereby registered as an order of
this court.
2.
The respondent be and is hereby ordered to pay costs.
Atherstone
& Cook, applicant's
legal practitioners
Messrs
Dube, Manikai & Hwacha,
respondent's legal practitioners
