African Sun Limited v Tersh Mahiya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/204/16
HELD AT HARARE ON 18th NOVEMBER, 2015
CASE NO.
JUDGMENT NO. LC/H/204/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/204/16

HELD AT HARARE ON 18th NOVEMBER, 2015     CASE NO. LC/H/1067/13

AND 8th APRIL, 2016

In the matter between:-

AFRICAN SUN LIMITED						    Appellant

And

TERSH MAHIYA								    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Advocate Mahere (Legal Practitioner)

For Respondent	:	Mr L. Madhuku (Legal Practitioner)

MHURI J.

The grounds of appeal which form the basis of this appeal are that:-

“1.	The Arbitrator erred in finding that he had jurisdiction to entertain the dispute when the jurisdiction of a labour arbitrator is confined to disputes involving employees.

The Arbitrator grossly misdirected himself on the facts, which misdirection amounts to an error of law, in finding that the Respondent is entitled to cash in lieu of leave, outstanding commissions from 2011 and COPAC commissions.”

The brief background to this matter is that Respondent was in Appellant’s employ as a Sales Manager as from 2007.  On the 30th April 2013 Respondent tendered her resignation from Appellant’s employ.  She did not give the required notice as required in terms of her contract of employment.

By a letter dated the 4th May, 2013 Appellant accepted the resignation and in the same letter brought it to the attention of Respondent what was due and payable from her to Appellant as a result of the resignation.

A claim for the payment of terminal benefits and commissions was also made by Respondent against Appellant and the matter eventually found its way to the Arbitrator.

A point in limine on the jurisdiction of the Arbitrator over a person who had resigned was raised by Appellant before the Arbitrator.  The Arbitrator ruled against Appellant on this point and also ruled in favour of Respondent as regards her claim.

The award is the subject of this appeal.

The main legislation that governs employer and employee relationship is the Labour Act [Chapter 28:01] THE ACT.

Section 3 of the Act provides as follows:-

“APPLICATION OF ACT

This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

……………………

This Act shall not apply to or in respect of –

Members of the disciplined force of the state; or

Members of any disciplined force of a foreign State who are in Zimbabwe ………………………………….

Such other employees of the State …………………………….”

The definition section of the Act defines employer as:-

“any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him and include –

……………………

……………………

……………………

……………………

……………………”

Employee is defined as –

“any person who performs work or services for another person for remuneration or reward of such terms and conditions as agreed upon by the parties or, as provided for in this Act, and includes a person performing work or services for another person –

……………………

……………………”

In casu, the employer-employee relationship between Appellant and Respondent is not in dispute.  Respondent was Appellant’s employee until the effective date of her resignation from Appellant’s employ.  The terms and conditions of the contract of employment are not in dispute either.

The only question that arose was can an employee who has resigned make claims for rights accrued during the tenure of employment against his/her former employer under employment law or he/she is to proceed against the employer under the law of contract in a civil court?

This is the question the Arbitrator considered and he found as follows:-

“What is clear is that before the claimant resigned there was a dispute flowing from the contract of employment or the employer – employee relationship.

The employee’s rights existed up to the time she resigned.

Once that right to claim her commission had vested in Claimant, she is entitled to an order from this tribunal.

It would be a gross miscarriage of justice to dismiss her claims and refer her to the Civil Courts for an appropriate remedy.”

The Arbitrator relied on the case of –

BLUE RIBBON FOODS LIMITED

vs

DUBE N.O. and ANOTHER 1993 (2) ZLR 146 (S)

It is not in issue that Respondent ceased to be Appellant’s employee with effect from 30th April 2013.  This is the date upon which their relationship was severed.

As regards leave days, the record shows that Respondent had accrued 21 days at the time of her resignation.  At paragraph 6.2.2 of its heads of Argument to the Arbitrator, Appellant states;

“At the time of her termination Ms. Tersh Mahiya had a leave balance of 21 days.”

In paragraph 6.2 Appellant states the reason for not paying out cash in lieu of leave.  It states,

“Cash in lieu of leave (CILL) was withheld in an attempt to extinguish part of the notice which the Appellant admits she owes.”

In terms of Section 13 of the Act, this benefit is payable to an employee who has resigned.  This means that where there is no longer any relationship between the parties, this benefit is claimable under the Labour Act.

Section 13 reads as follows:-

“(1)	Subject to this Act or any regulations made in terms of this Act, whether any person –

is dismissed from his employment …………………; or

resigns from his employment; or

…………………………………………………………..

dies;

he or his estate ……………………… shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation ………………………including benefits with respect to any outstanding vacation ……………………… and the employer concerned shall pay such entitlements to such person ……………………… as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.”  (Underlining my own).

Where does one take this unfair labour practice to if not to the labour dispute resolution system as provided for in the Act  (Section 93)

As regards the commissions, the record shows these were payable upon certain conditions being met.  Respondent made claims for business she brought in, in 2011 and COPAC commission.  This was business brought in during Respondent’s tenure of employment.  The Arbitrator found as a fact that these issues were brought to the attention of Appellant (the Human Resources Director and the Chief Executive Officer) during the tenure of employment and that these issues remained unresolved until Respondent resigned.

In terms of Section 13 alluded to, the commission is payable and the failure to do so is an unfair labour practice which is to be resolved in terms of the dispute resolution mechanism as provided in terms of the Act (Section 93).

Whether Respondent managed to prove this claim or not is neither here nor there.  Section 94 of the Act provides the time period within which a dispute or unfair labour practice is to be referred to a Labour Officer.  It is within two years from the date when the dispute or unfair labour practice first arose.  If it is continuing at the time it is referred to the Labour Officer, the two years does not apply.

In casu, the issue of payment of commission remained unresolved at the time of Respondent’s resignation.  Respondent therefore was entitled to refer it to the Labour Officer for resolution and by Sections 93 and 94 of the Act the Labour Officer and by extension the Arbitrator had jurisdiction to entertain the matter.

The Arbitrator’s decision that he had the jurisdiction cannot be faulted.  I was not persuaded by the argument that since the employer-employee relationship had been severed, Respondent’s claim lay not with the Labour Officer but as a civil suit in a civil court.

I was equally not persuaded by the argument that the Labour Act does not apply to cases such as this one because the definition of employee does not state

“who performed work,” and employer “who employed or provided ………………….”

As regards the payment of cash in lieu of leave, I have already ruled that this is payable in terms of section 13 of the Act.

Section 12A subsection 6 provides,

“No deduction or set-off of any description shall be made from any remuneration except –

………………………………”

It then lists the scenarios for which deductions can be made and deduction for failure to give notice by the employee is not one of them.

Section 12 (7) also, does not give the employer as it does to the employee, the right to payment in lieu of notice, for a period corresponding to the appropriate period of notice.

The Arbitrator was therefore correct in awarding cash in lieu of leave.

As regards commissions, the Arbitrator found that Respondent was entitled to the commissions, that the policy change in the payment of commissions was effected after Respondent had earned the commissions.  It is correct that these later changes should not affect Respondent’s existing right.

The Arbitrator also found as a fact that the figures Respondent was claiming were provided to her by Appellant having been calculated by Appellant basing on the business received.  (See letter by the Acting Project Coordinator COPAC) dated 28th August, 2013 acknowledging indebtedness $197,791.64 to Crown Plaza Hotel for services rendered to it.  See also Appellant’s Group Sales Policy (2) which states that Commission shall be paid at 7.5% of excess to monthly targets.

In my view therefore there was no gross misdirection on the part of the Arbitrator when he held that Respondent was entitled to commissions.

The Arbitrator was alive to the well-established principle that he who alleges bears the onus to prove his claim.  He was unable to issue a quantified column of the commissions because of inadequacy of documents placed before him.

FIRST MUTUAL LIFE ASSURANCE

Vs

JACKSON MUZIVI SC 9/07

is instructive on this point.

In view of that, he gave the parties an opportunity to agree on the quantum upon failure of which either party could approach him for quantification.  I will endorse this with an amendment to the effect that the parties agree on the quantum within 30 days of this judgment upon failure of which either party approaches this court for quantification.

Overally, I find that the appeal is devoid of merit and should be dismissed.

It is therefore ordered that the appeal be and is hereby dismissed with costs.

Dube, Manikai & Hwacha – Appellant’s legal practitioners

Matsikidze & Mucheche – Respondent’s legal practitioners