CLOUT
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An employee had been suspended from duty by his employer pending a disciplinary hearing into alleged misconduct. According to the terms of the applicable code of conduct, the matter was required to be referred to a disciplinary committee within 10 days. However, before the 10 days' period elapsed, the employee applied to the High Court for an order that the dispute be referred to arbitration instead of being decided by the disciplinary committee under the code of conduct.

The High Court granted the order and the issue was referred to arbitration. By then, the 10 days' period had elapsed. The arbitral tribunal, basing its decision on a mistake as to the date of the suspension, held that such suspension was unlawful, as the matter had not been referred to a disciplinary hearing within the 10 days' period. As a result, the arbitral tribunal did not appreciate and did not consider the effect of the employee's application to the High Court, namely that it precluded the employer from complying with the code of conduct.

The employer applied to the High Court to have the arbitral award set aside on the basis that it was contrary to the public policy of Zimbabwe pursuant to article 34 MAL. The employee sought an order for the enforcement of the arbitral award in accordance with article 35 MAL. The High Court dismissed both applications (see CLOUT Case No. 267). The employer next appealed to the Supreme Court on the same grounds and, in his notice of cross-appeal, the employee contended that the High Court, having correctly refused to set aside the arbitral award, should accede to the enforcement thereof.

The Supreme Court discussed the public policy under article 34 MAL. Whilst upholding the principle that it must be construed narrowly, the Supreme Court held that where an award was based on so fundamental an error, as in this case, that it constituted a palpable inequity that was so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it should be contrary to public policy to uphold it. It further held that although no moral turpitude attached to the conduct of the arbitrator, the arbitral award was contrary to the public policy of Zimbabwe in terms of article 34(2)(b)(ii) MAL.

Accordingly, the Supreme Court set aside the arbitral award and dismissed the employee's cross- appeal.

[Original: English]

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