Joseph Lungu and Others v Reserve Bank of Zimbabwe

The 153 appellants were employed as security guards by the Reserve Bank of Zimbabwe on fixed-term contracts renewable every three months, from 2007-2008 until their contracts expired by effluxion of time in January and April 2011 when the project for which they were employed was wound up. In July 2010, in a separate matter, arbitrator Nasho ordered the respondent to pay back pay from 1 March 2009 in line with the multi-currency system. This led to a Works Council Agreement on 15 September 2010 fixing back pay and salary structures for non-managerial employees from 1 January 2010 onwards. The appellants challenged their termination, claiming their contracts had become permanent upon repeated renewal, but arbitrator Mugumisi dismissed this unfair dismissal claim on 4 April 2012, which was upheld by the Labour Court. On 10 December 2012, the appellants filed a further claim for payment of arrear salaries and benefits. Arbitrator Mambara found in their favour and awarded arrear salary and benefits according to the 2010 Works Council Agreement from 1 January 2010 to the date each claimant was retrenched. The respondent applied to the Labour Court for review of this award, and the Labour Court set aside the arbitral award and dismissed the appellants' claim.

• Whether the Labour Court has jurisdiction to review arbitral awards in labour matters
• Whether the arbitrator exceeded his terms of reference by allegedly re-grading the appellants
• Whether the arbitrator's award improperly altered the previous court decision regarding unfair dismissal
• Whether the operative order made by the arbitrator was fundamentally flawed due to incorrect dates and terminology (use of 'retrenched' instead of termination by effluxion of time)
• Whether the scope of the 2010 Works Council Agreement extended to fixed-term contract employees such as the appellants

1. The appeal succeeds in respect of Ground 3 (regarding re-grading) and is dismissed in respect of Grounds 1, 2 and 4 in the Notice of Appeal. 2. The judgment of the court a quo is set aside insofar as it relates to Ground 3 in the Notice of Appeal. 3. The matter is remitted to the court a quo: (i) to determine, based on the provisions of the Works Council Agreement concluded in September 2010 and accompanying minutes, and having regard to sworn evidence from signatories to the Agreement, whether the salaries and benefits stipulated in that Agreement were intended to apply to the appellants; and (ii) if affirmative, to quantify the salary and benefits due to each appellant from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to deduction of payments already received. 4. Each party shall bear its own costs in respect of this appeal.

The binding legal principles established are: (1) The Labour Court has full jurisdiction to review arbitral awards in labour matters under sections 89(1)(d1) and 92EE of the Labour Act on the same grounds as the High Court exercises review powers under section 27 of the High Court Act, including for absence of jurisdiction, bias, and gross irregularity in proceedings or decisions. (2) The review powers of the Labour Court extend to arbitrators and adjudicating authorities in all labour matters, and the Labour Court has exclusive first-instance jurisdiction over such reviews. (3) The operative order made by a judicial tribunal constitutes the decisive gravamen of its adjudicative process and must be capable of obedience and practical enforcement; its precise wording and exactitude of expression are of paramount importance. (4) Fundamental errors in the operative part of an arbitral award that go to the substance of the relief granted (such as incorrect dates for the period of entitlement or incorrect characterization of the nature of termination) cannot be dismissed as mere technicalities or typographical errors and may render the award a nullity. (5) An arbitrator does not exceed terms of reference by applying an existing agreement to determine quantum of admitted liability, provided the arbitrator does not alter the substantive employment status determined by previous proceedings.

The Court made several non-binding observations: (1) Patel JA noted his endorsement of the reasoning in Zimasco (Pvt) Ltd v Marikano regarding the interpretation of section 89(1)(d1), including Garwe JA's statement that any other reading would result in an absurdity whereby procedural or other irregularities committed by arbitrators would be wholly unreviewable. (2) The Court observed that technicalities should not be allowed to impinge upon or obstruct the delivery of justice in labour matters, while simultaneously cautioning that this principle has limits where fundamental defects in orders are concerned. (3) Patel JA noted some doubt about whether it was common cause that the 153 appellants were part of the 1078 claimants and beneficiaries of the Nasho award, stating 'although even this may need clarification.' (4) The Court expressed the view that if the 2010 Agreement was designed to embrace all of the respondent's employees, it would follow that the appellants have 'an eminently justifiable claim' to the benefits accruing from that Agreement, though this remained to be properly determined on remittal. (5) The Court commented that the Labour Court was statutorily empowered to call for evidence to be adduced but failed to do so on the critical issue of the scope of the 2010 Agreement.

This case is significant in Zimbabwean labour law for definitively clarifying the Labour Court's jurisdiction to review arbitral awards in labour matters. It authoritatively confirms that sections 89(1)(d1) and 92EE of the Labour Act confer upon the Labour Court the full breadth of review powers equivalent to those of the High Court under section 27 of the High Court Act, and that these powers expressly extend to reviewing decisions of arbitrators and adjudicating authorities in labour matters. This settles any doubt arising from earlier cases (Catering Employers Association and National Social Security Authority) that might have suggested limitations on such review jurisdiction. The case also establishes important principles regarding the precision required in drafting operative orders by arbitrators and judicial tribunals, emphasizing that fundamental errors in orders cannot be dismissed as mere technicalities and may render awards nullities. Additionally, it demonstrates the Court's willingness to remit matters in the interests of justice and finality of litigation where critical issues have not been properly addressed by lower tribunals.