EXTEMPORE
MAKONI
JA: After
hearing submissions from the parties, we delivered an extempore
judgment.
The appellant has requested for written reasons. These are they.
This
is an appeal against the decision of the Labour Court dated 23
September 2023 in which it dismissed the appellant's appeal.
Briefly,
the appellant was employed by respondent as the Operations Director
on a fixed term contract. The tenure was 1 June 2003 to 31 May 2008.
Before its expiry, the contract was terminated in 2007 by the
respondent. Pursuant to the termination the respondent paid the
appellant what would have accrued to him up to the expiry of the
contract had the contract subsisted to the date of expiry.
The
appellant was dissatisfied and lodged a complaint of an unfair Labour
Practice, to a Labour Officer who conciliated the matter and issued a
certificate of no settlement.
On
17 July 2007, the Labour Officer referred the dispute to arbitration
on terms of reference set out in the Form LR 4. The same terms of
reference were replicated before the Arbitrator and signed for by
both parties on 28 August 2008.
The
appellant does not refuse the signature appearing on the terms of
reference but says it belongs to a friend of his.
The
terms included inter
alia
whether or not the employer was at liberty to terminate the
employee's fixed term contract and pay out the remainder of that
contract.
The
arbitrator found that by accepting the new offer and signing it, the
appellant was bound by the new contract in that he had terminated the
previous contract. She found further that the respondent terminated
the fixed term contract in terms of the law and that it acted within
its rights.
Again
the appellant was unhappy with the outcome and he appealed to the
Labour Court.
After
protracted proceedings, which culminated in an appeal to this Court
and a remittal of the matter to the Labour Court, the court a
quo
finally rendered the judgment appealed against in the present appeal.
The
court a
quo
upheld a preliminary point taken by the respondent on the validity of
most of the grounds of appeal. It struck them out on the basis that
they were not valid appeal grounds, but review grounds.
On
the merits of the remaining grounds, the court a
quo
upheld the findings of the arbitrator that the employment contract
was lawfully terminated.
The
appellant was aggrieved and lodged the present appeal on four
grounds, the essence of which, is that the unfair labour practice
which he referred to a Labour Officer has never been determined and
resolved.
In
his oral submissions, the appellant submitted that the entire
proceedings from the Labour Officer right up to the Labour Court were
null and void by reason that all lower tribunals resolved issues that
he had not placed before them.
Per
contra, Mr Kondongwe,
for the respondent, submitted that the appellant's grounds of
appeal and his submissions raise new issues which were not placed
before the court a
quo.
He
further submitted that the sole issue for arbitration was always
whether the employment contract was lawfully terminated.
In
our view, the legitimate terms of reference to arbitration were
confirmed by the Labour Officer in Form LR4 and regurgitated by the
arbitrator before being signed for by the parties. The arbitrator was
squarely within her terms of reference in determining the lawfulness
or otherwise of the termination of the employment contract.
Such
a determination resolved the entire dispute between the parties.
The
appellant confirmed the terms of reference before the arbitrator
through the signature appended by his friend. He did not object, in
the proceedings before the arbitrator, that the terms of reference
did not cover the issue he referred to the Labour Officer.
By
extension the court a
quo
properly resolved that dispute on appeal. There is no merit in the
appeal which ought to fail. Regarding the granting of costs we see no
reason why costs should not follow the cause.
Accordingly,
it be and is hereby ordered as follows:
“The
appeal is dismissed with costs.”
MATHONSI
JA:
I agree
MWAYERA
JA:
I agree
Dube,
Manika & Hwacha,
respondent's legal practitioners
