BILTRANS SERVICES (PVT) LTD v MINISTER OF LABOUR & ORS 2016 (2) ZLR 1041 (C)

Flynote

Arbitration: " award " registration of " judge or magistrate not merely carrying out clerical function " what judicial officer must be satisfied about before registering award

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of D Rights " right to equal protection of the law (s 56(1)) " provision in s 92E(2) of Labour Act that noting of appeal to Labour Court does not suspend operation of order appealed against " need to read section as a whole " rights of both parties protected " registration of arbitral award in terms of s 98(14) of Labour Act " registering court not carrying out mere clerical function

Interpretation of statutes: " E intention of legislature " need to read provision in context, not in isolation

The applicant was the employer of the second to sixth respondents, who had been dismissed for misconduct. An arbitrator found in favour ofthe employees. An appeal by the applicant to the Labour Court was dismissed for want of prosecution. The arbitrator thereafter quantified the award, and the High Court granted the employees' application for registration of the award. The applicant noted an appeal to the Labour Court against the quantification, but in the meantime the employees had obtained a writ of execution against the applicant. The High Court G rejected an application for stay of execution, so the applicant sought an order declaring unconstitutional ss 92E(2) and 98(14) of the Labour Act [Chapter 28:01].

Its argument was that these provisions infringed the right given by s 56(1) of the Constitution to equal protection of the law and the right to fairlabour practices given by s 65(1). Section 92E(2) provides that an appeal to the Labour Court against a determination or decision did notsuspend the determination appealed against. It was argued that this deprived the party appealing of the right to equal protection of the law, particularly since the winning party could then register and execute the award, before the appeal was heard by the Labour Court, thus rendering the appeal academic. Worse still, if an arbitrator ordered reinstatement,an employer would be forced to work with an employee it had already dismissed, pending the appeal. The subsection, it was argued, also did not pass the test of rationality, when it is considered that decisions of superior courts, like the High Court, are suspended by the noting of an appeal, yet arbitrators' decisions were not subject to the same limitation.

It was also argued that s 98(14), by not providing that upon registration of an award a judge of the High Court may examine the award on the merits, deprives a party against whom the award is made of the protection of the law as enshrined in s 56(1) of the Constitution, since it reduces a High Court judge to play the role of a clerk who, as a matter of course, must routinely rubber stamp the arbitral awards.

Held, that the applicant had fallen into the mistake of reading s 92E(2) in isolation from the rest of the section. Such a piecemeal approach to the law offends against the settled rule of interpretation to the effect that legislative provisions must be read in their context, and construed with proper regard to the subject matter the instrument deals with and the object it seeks to achieve. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. A court must not in expounding a statute be guided by a single sentence or member of a sentence. It must look to the provisions of the whole law, and to its object and policy.

Held, further, that the provisions of s 92E are all lined up and deal with the same issue, which is an appeal to the Labour Court and its effects and remedies. The provisions of the section all colour each other. It would be an error to treat s 92E(2) as though it existed in isolation, unaffected by the provisions surrounding it. While s 92E(2) provides that an appeal against a determination shall not suspend the determination appealed against, equally important is s 92E(3) which empowers the Labour Court, pending the determination of the appeal, to make such interim measures as the justice of the case requires. The legislature clearly sought to protect the interests of both parties. Section 92E(2) protects the winning party by ensuring that the losing party does not initiate frivolous appeals merely to delay complying with the award, which a losing party may be tempted to do if an appeal suspended the award. Conversely, s 92E(3), provides a safety net for the losing party, by permitting such party, once it has noted an appeal to the Labour Court, to make an application for an interim measure pending the appeal. Such interim measures would take the form of an application for stay of execution or any other appropriate relief to ensure that the judgment appealed against is not executed before the Labour Court has determined the appeal.

Held, further, that the Act clearly provides remedies that protect the interests of both parties. When a party fails to utilise a remedy provided by the law for the protection of its rights it cannot seek refuge from the underlying constitutional provision. It must first show why the remedy provided for the protection of its rights by a statute is not an effective remedy.Failure to invoke a remedy designed for the protection of a right does not give rise to a question of violation of the fundamental right to equal protection of the law.

Held, further, that in registering an arbitral award the High Court and the magistrates court are not carrying out a mere clerical function. While the registering court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied before registering an award that all the necessary formalities have been complied with, namely (a) that the award was granted by a competent arbitrator; (b) that the award sounds in money; (c) that the award is still extant and has not been set aside on review or appeal; (d) that the litigants are the parties, the subject of the arbitral award; and (e) that the award is certified as an award of the arbitrator. Registration is not a foregone conclusion and a party against whom the award is made can successfully oppose the registration of an arbitral award if it does not comply with the requirements for registration.

Held, further, that an application for registration of an arbitral award presupposes that there is no application made to or pending before the Labour Court for an interim order suspending the execution of the decision appealed against. A party cannot submit for registration an arbitral award he or she knows or ought to know is subject to an interim determination suspending its execution pending appeal.