PILIME & ORS v MIDRIVER ENTERPRISES (PVT) LTD 2014 (2) ZLR 91 (H)

Flynote

Arbitration — award — setting aside of — grounds — award contrary to public policy — meaning — quantification of loss — need for quantification to be based on determinable figures — arbitrator accepting one party's figures without any basis for doing so — award set aside

Headnote

It is undesirable to deal with labour disputes before arbitrators or the Labour Court piecemeal. Such an approach, whereby an arbitrator or the Labour Court makes an award and sends the parties to try and negotiate the figures, failing which they then return for quantification, creates a multiplicity of cases. It even raises the issue of whether such an award is a final order which is appealable, or only becomes final upon the parties agreeing on quantum or after the arbitrator has quantified the loss following disagreement between the parties. The result is that there may be an appeal noted against the first part of the award as, on the face of it, it purports to be complete. When there is another award quantifying the loss to the employees, that aspect of the award is equally susceptible to an appeal. Thus there may end up being more than one appeal in respect of what is in essence one dispute.

Labour procedures were meant to be as flexible and as informal as possible, but are now subject to the normal rules of procedure insofar as they result in orders (or awards) that are executable like orders of ordinary courts and are subject generally to the same rules relating to appeals. The time has come for arbitrators and the Labour Court to give final awards or orders unless the parties themselves have asked for an opportunity to negotiate the terms of the orders or awards.

Not every fault or mistake of an arbitrator, be it of law or fact, would fall within the ambit of the expression "contrary to the public policy of Zimbabwe", justifying the setting aside of the award. For it to qualify to fall within the meaning of that expression, the arbitrator's reasoning or a conclusion must go beyond mere faultiness or incorrectness, and must constitute a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice would be intolerably hurt if the award was upheld or enforced. An award that contravenes a fundamental principle of law would be contrary to the public policy of Zimbabwe.

The concept of quantification of loss entails some assessment of the loss which is based on determinable factors. There can be no quantification when there is neither evidence nor a basis tendered to justify the figures being awarded. Where the amounts awarded by the arbitrator were not based on any evidence or some other valid ground, but were awarded merely because the respondent did not put forward its own figures, such an approach would constitute a palpable inequity that subverts our concept of justice.