DISTRIBUTABLE
(109)
Judgment No
SC 103/04
Civil Appeal No 124/03
EDGARS
STORES MANAGERS ASSOCIATION v EDGARS STORES
LIMITED
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ, CHEDA
JA & ZIYAMBI JA
HARARE MAY 31 2004,
& FEBRUARY 28, 2005
A. Muchadehama,
for the appellant
Y. Phillips, for
the respondent
CHIDYAUSIKU CJ: This is an appeal from a determination of the
Labour Court. The appellant is an association of employees
of the
respondent. The two parties had a running dispute between them
since at least July 1999. The subject of the dispute related
to the
cost of living adjustment, upgrading the section managers,
restoration of clothing allowances and the minimum rate of pay
for
grade 7 11 managerial employees.
In or about June 1999 the parties entered into an agreement on how to
deal with, inter alia, minimum conditions of service including
minimum salary and wage levels. Clause 6 of that agreement provides
as follows:-
In the event that the representatives of the Edgars Group and the
Managerial Employees Committee are unable to reach agreement
on any
subject of debate, then, the matter shall be referred to external
voluntary arbitration. The determination of the arbitrator
shall be
binding on both parties.
When the parties were unable to reach an agreement on the above
issue the appellant referred the dispute to a Labour Relations
Officer in terms of s 93 of the Labour Relations Act [Chapter 28:5]
(the Act) for his determination. The Labour Relations
Officer
made a determination in favour of the appellant. The respondent
appealed against that determination to the Senior Labour
Relations
Officer. The Senior Labour Relations Officer upheld the
determination of the Labour Relations Officer and dismissed the
appeal.
The respondent
thereafter appealed to the Labour Court and raised the point of
jurisdiction. The Labour Court upheld the appeal.
The appellant
was dissatisfied with that determination and now appeals to this
Court.
Although the notice
of appeal consists of more than ten grounds of appeal, in essence,
the notice of appeal contends that clause
6 of the agreement between
the parties has been superceded by s 93 of the Act or should not be
elevated to the level of the code
of conduct. The learned President
of the Labour Court was not persuaded by this contention. In
allowing the appeal, she reasoned
as follows:-
I find that this was a wrong course to take. The parties are
bound by the provisions of the Constitution they drafted. Both
parties are supposed to respect and follow the provisions they
mutually agreed to. There would have been nothing wrong if the
respondent
had referred the matter to a Labour Relations Officer as
an arbitrator in terms of their Constitution and the Labour Relations
Officer
deals with the matter as such. By dealing with the matter
as an unfair labour practice, the Labour Relations Officer erred, and
her findings cannot be allowed to stand.
I do not understand the
provisions of the Constitution to mean that the jurisdiction of the
Labour Relations Officer in terms of section
93 of the Labour
Relations Act is ousted. All the Constitution is saying is that for
a matter that a deadlock has been declared,
the parties are to refer
it for external voluntary arbitration.
A party can still
approach a Labour Relations Officer alleging an unfair labour
practice in terms of section 93 of the Labour Relations
Act if that
matter has not been declared a deadlock.
Under the
circumstances, I find that the Labour Relations Officer had no
jurisdiction to entertain the matter. Accordingly both
the Labour
Relations Officer and the Senior Labour Relations Officers
determinations are set aside. The parties are directed
to comply
with the provisions of their Constitution in cases where a deadlock
has been declared.
The reasoning of the President of the Labour Court cannot be
faulted. It is quite clear that clause 6 of the agreement between
the parties is an arbitration agreement in terms of article 7 of the
First Schedule of the Arbitration Act [Chapter 7:15].
It follows, therefore, that article 8 applies to this case and it
requires a court to stay proceedings if the parties so request,
and
refer the matter to arbitration unless it finds the agreement to be
null and void, inoperative or incapable of being performed.
Authority for the above proposition is to be found in the cases of
Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt)
Ltd 1991 (1) ZLR 268; Zimbabwe Broadcasting Corporation v
Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 and PTA
Bank v Elanne (Pvt) Ltd 2000 (1) ZLR 156.
Whether a dispute
falls within the ambit of an arbitration clause is primarily a
question of interpretation. If a clause does
fall within the ambit
of the arbitration clause then the court must stay the proceedings
and refer the matter to arbitration.
In my view clause 6
does fall within the ambit of the arbitration clause and the
proceedings must be stayed and referred to arbitration.
On this basis I am satisfied that there is no merit in the appeal and
the appeal is dismissed with costs.
CHEDA JA: I agree
ZIYAMBI JA: I agree
Mbidzo, Muchadehama
& Makoni, appellant's legal practitioners
Gill Godlonton &
Gerrans, respondent's legal practitioners