TEL-ONE (PVT) LTD v COMMUNICATION & ALLIED SERVICES WORKERS' UNION OF ZIMBABWE 2007 (2) ZLR 262 (H)

Flynote

Arbitration — award — setting aside of — grounds for — award contrary to public policy — meaning of — wage settlement — award which would drive employer out of business — contrary to public policy

Headnote

Wages negotiations between the applicant company and the respondent trade union were referred to arbitration. The arbitrator's award, in which pay rises were ordered, was ambiguous. On one interpretation, the increase was such that the applicant would have been driven into insolvency, as the increase was more than the applicant's income. On another, it was an affordable increase. The applicant sought to have the award set aside on the grounds that it was contrary to public policy. Held, that the concept of public policy is an elusive one, depending on transient and sometimes subjective views on what is or what is not in the public benefit or what constitutes Zimbabwean public good. In assessing an arbitral award, the court must consider the substantive effect of the award and determine whether or not it is contrary to public policy in its effect. There is no doubt that the spirit of collective bargaining between employer and employee is to arrive by consensus or, if that fails, by arbitration, what a fair wage is. The idea is to preserve the employer-employee relationship. The employee makes his labour available for a fair fee. The employer engages the employee on acceptable terms and conditions. The employer employs his resources to ensure that the goose that lays the eggs for their mutual benefit continues to do so. Society expects these mutually beneficial outcomes. Awards which would drive employers out of business, thereby destroying the economic fabric of the nation, could not be said to be in the best interests of the general good of Zimbabwe.