Arbitral awards giving former Premier Service Medical Aid Society (PSMAS) chief executive Dr Cuthbert Dube over $3 million in salary arrears that accrued since his sacking in January last year, are defective and can only be rectified by way of fresh proceedings, the Labour Court has ruled.
Dr Dube won his case for reinstatement in April this year and backdated salaries plus full benefits after an Arbitrator Mr Dumisani Moyo, ruled in his favour.
The ruling inspired Dr Dube, through his lawyer Mr Jonathan Samukange, to apply for registration of the award at the High Court.
But in a counter move, PSMAS loped to the Labour Court to interdict Dr Dube from enforcing the payments until the appeal against the arbitral award was determined.
Justice Betty Chidziva, sitting with Justice Euna Makamure, interdicted Dr Dube from executing the awards until the dispute was finalised.
The judge also ruled that PSMAS entertained high hopes of success on appeal in view of the circumstances surrounding the two awards.
“In view of the foregoing this court finds that this is a case where the balance of convenience requires that respondent be interdicted from executing the arbitral awards,” said Justice Chidziva.
“The two arbitral awards be and are hereby stayed pending the determination of the appeals before this court.”
In their appeals that seek to suspend the arbitrator’s decision, PSMAS and PSMI — through their lawyer Mr James Chikobvu Muzangaza — said Dr Dube should wait for determination of the dispute at the Labour Court.
Justice Chidziva in her judgment noted that the two awards did not have a concomitant order of damages as an alternative in terms of the law hence were bound to be interfered with on appeal.
“The two arbitral awards are incompetent as they do not have specified amounts of damages in lieu of reinstatement,” she said.
“It is because of these reasons that the applicant has prospects of success on appeal.”
Advocate Fadzayi Mahere, instructed by Mr Muzangaza, arguing for PSMAS and PMSI, submitted that the registration and execution of these awards would cause irreparable prejudice on the applicants.
Mr Samukange submitted that his client was a man of means and could pay back his former employers if the appeal succeeds. The court did not agree with Mr Samukange’s submission.
“If he is a man of means he has to live on what he has until the appeal is finalized,” ruled Justice Chidziva. In the grounds of appeal in the case of PSMAS, Mr Muzangaza argued that the arbitrator erred in ordering that Dr Dube be paid his salary arrears at the rate of $138 000 a month, when there was no basis for such.
He said Mr Moyo erred in finding that Dr Dube’s contract of employment subsisted as at the time of the arbitration of proceedings, when all facts and circumstances as presented to him and as had been acknowledged by the parties at conciliation stage, showed without doubt that the said contract had been terminated.
With regards to PSMI, Mr Muzangaza argued that the arbitrator erred in making an order that is equivalent to the reinstatement of Dr Dube without making a provision for damages as an alternative in compliance with certain provisions of the Labour Act.
He argued that the matter for determination was supposed to be on the legality of Dr Dube’s termination of contract.
Mr Muzangaza attacked the arbitrator’s ruling, accusing him of reformatting the issues to suit his purposes, when he was not legally entitled to do so. Dr Dube had filed two claims demanding his monthly salary of $138 000 from PSMAS and another for $92 000 per month from PSMI.
He was earning a combined $230 000 a month from PSMAS and PSMI when he was forced to resign in January 2014. herald
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