BY JAMES MUTASA

Webster Dimingu, a Bulawayo based arbitrator recently determined that the 12 unfairly dismissed security guards by Peace Security Private limited should register an arbitral award passed on the 31^st July 2023 with the Labour Court for enforcement purposes.

Dimingu’s determination comes after the employees who were represented by Elvis Dondo of Dondo Saunyama Legal Practitioners had requested that he determines, among other things, if they can enforce Patience Chitsika, a designated Agent with the National Employment Council for the Security Industry’s 31^st of July 2023 award which ordered that they should be re-engaged by their employer and also to determine whether or not Peace Security has engaged in an unfair labour practice by refusing to reinstate them.

In his award, Dimingu ordered that the 12 former Peace Security Private limited security guards who worked at the United States of America embassy should safely cure all the four terms of reference referred for arbitration by lodging an appeal against Chitsika’s 8^th August 2024 and 17^th December 2024 determinations where she declined jurisdiction to quantify the damages for loss of employment or register the 31^st July 2023 determination for enforcement purposes.

Elvis Dondo, had argued that Chitsika’s determination handed down on the 31^st of July 2023 which ordered the respondent to re-engage the unfairly dismissed guards with effect from 1^st of August 2023 had no alternative order in the event that peace security failed to re-engage. ‘Noticing the anomaly the applicants approached the designated Agent with an application for quantification of damages in lieu of reinstatement issued on the 8^th of August 2024 in which the Designated Agent declined jurisdiction ordering the Applicants to approach the higher courts for registration of the determination.’ Dondo stated.

‘A determination made by a Designated Agent or a Labour officer is not automatically enforceable without registration but are binding on to the parties involved if it is not appealed against.’ 

He went on to submit that the Chitsika’s award was unenforceable because it has no alternative order of payment of damages in lieu of re-engagement and it could not be registered in that state.

On the other hand, Author Marara of AM Corporate Attorneys who was representing Peace Security (Pvt) Ltd argued that there was no unfair labour practice to talk about since the position of the law recognizes reinstatement and not re-engagement. Reinstatement presupposes the continuation of an existing employment relationship, whereas re-engagement contemplates the creation of a new employment relationship.

Part of Dimingu’s award reads, ‘We now have three determinations, the first one ordering the Respondent to reengage the Applicants, the second one ordering the applicants to approach the superior courts for registration and the third one directing the applicants to approach the labour court or a directive.

‘All determinations are still binding on the parties but cannot be enforced on the other since they are not registered by relevant court. The designated agent misdirected herself by refereeing this matter for arbitration for the enforcement of a determination which was not registered. She had already determined the matter which needs compliance by either party. Enforcement of a determination has its laid down procedure as expounded above.

‘The aggrieved party for each determination must take the correct route to enforce,’ Dimingu concluded his arbitral award.