Ingwebu breweries loses court appeal

THE BULAWAYO labour court has dismissed an appeal by Ingwebu breweries in a case in which the brewery was challenging an arbitral award in favour of its former manager Makhosini Khumalo.

Management had earlier on failed to attend the arbitral hearing involving a deadlock over a retrenchment package.

The appellant, Ingwebu breweries was not in attendance at the arbitration hearing where the respondent Khumalo attended and a default award was handed in favour of the employee.

In giving the default award, the arbitrator said Ingwebu Brewries had failed to attend the hearing despite having been properly notified to attend.

"The claimant applied for a default award which is hereby granted as below in accordance with its prayer."

Ingwebu through their defense counsel took up the matter on the grounds that the arbitrator erred at law in dealing with the matter when he had no jurisdiction to do so.

"The labour officer's conciliation was null and void as the conciliation should have been by a designated agent. The referral to the arbitrator was therefore tainted with illegality, rendering the process null and void," said the appellant's defence
counsel.

The appellant also indicated that the arbitrator failed to follow Article 25 (C) of the Arbitration Act, Chapter 7:02 and so erred at law by not considering the matter on the merits despite the appellant's absence.

"The arbitrator erred at law by going beyond his terms of reference. All he was asked to do was to determine whether or not there was a deadlock on retrenchment package negotiations. The arbitrator erred at law by going outside his mandate, the matter being one for retrenchment, at law he is not a
retrenchment authority and so could not assume that role."

However in his ruling Labour Court judge Evangelista Kabasa dismissed the matter with costs.

"I do not think the fact that the grounds of appeal zeroed in on the merits and not the fact that the appellant was not heard changes anything.

"In any case the absence of the appellant led to the arbitrator's failure to address his mind to all the issues. I can therefore safely say "but for the appellant's absence at the hearing, the arbitrator would have heard submissions and applied his mind to the merits of the matter," said Justice Kabasa.

She said the impropriety of the decision was not the deciding factor regarding the appropriate recourse available to the appellant, adding that the Ingwebu breweries loses court appeal important consideration was the fact that this was a default judgment, which could not be appealed against.

"I must say I also considered the undesirability of allowing appeals against default judgements as I am of the view that this may open flood gates for litigants "ignoring" arbitration hearings and then approaching the Labour Court on appeal arguing that the award is bad at law anyway and should therefore not be allowed to stand," Kabasa ruled.

She added; "I earlier on posed a question which I said I would answer after looking at the two Supreme Court judgments. The question being, can one appeal against a default judgment if they show that the judgment is bad at law and cannot stand? The answer is no. I do not see this as a valid exception to the precedent set by the Supreme Court decisions, to the effect that one cannot
appeal against a default judgment."

"In the result, the appellant should seek the rescission of the default judgment. The appeal is accordingly dismissed, with costs," he ruled.