Allen Muchando v Dek Petroleum

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/365/16
HELD AT HARARE 12 MAY 2016
CASE NO
JUDGMENT NO LC/H/365/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/365/16

HELD AT HARARE 12 MAY 2016				CASE NO LC/H/801/14

& 10 JUNE 2016

In the matter between:

ALLEN MUCHANDO				Appellant

And

DEK PETROLEUM				Respondent

Before The Honourable E Muchawa, Judge

Appellant			In person

For Respondent		Miss P C Nyandoroh (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award.

The appellant was employed by the respondent as a forecourt cashier from December 2012.  He was earning a salary of $250.00 per month.  The respondent alleges that the service station at which the appellant was employed closed in December 2013.  The appellant then lodged a complaint with the NEC for the Motor Industry on 19 February 2014 alleging non-payment of salaries, overtime and underpayments.  Failing settlement at conciliation level, the matter was referred to arbitration.

The arbitrator found that it was not disputed that the appellant was owed his salary for January 2014 and should receive it.  Unfortunately this was not fully awarded.

The claim for overtime was thrown out ostensibly because of “the absence of documentation.”

An amount of $1 659.99 was awarded as underpayment for the period December 2012 to January 2014.

A claim for a housing allowance was thrown out due to lack of proof.

Dissatisfied, the appellant has lodged this appeal on these grounds.

The honourable arbitrator’s findings on the facts were so unreasonable as to amount to a serious misdirection at law more particularly in that;

The arbitrator failed to determine that the contract of employment of the appellant was not terminated in January 2014 as there was no such evidence, the evidence on record simply being that appellant continued work till end of April 2014 as per his complaint submitted to the NEC hence appellant was entitled to his salary for four months being January 2014 to April 2014.  Moreover the arbitrator went on to award as if the January 2014 salary had been paid for contrary even to his findings.

The honourable arbitrator erred at law in his interpretation of clause 25 and 26 of the Collective Bargaining Agreement for the Motor Industry S.I. 35/2011 more particularly in that, appellant claim for overtime could not be quantified after a year when the same that was put forward before him was no even desputed  (sic) by the respondent.  Further, the arbitrator erred in his interpretation that overtime could only be claimed on a weekly basis or monthly basis against the evidence advanced by appellant that efforts to have the same paid for had hit a brick wall.

The appeal is opposed.  I turn to consider each ground below.

Ground 1 – Arrear salaries for January to April 2014

The appellant, in his submissions indicates that his contract of employment was terminated in April 2014 and not in January 2014 hence the claim for arrear salaries up to April.

On the other hand, the respondent argues that the claims for February, March and April 2014 fall outside the date of the contract of employment as the service station ceased operations in December 2013 and terminated employment contracts in January 2014.

The record on page 25 shows that as at 19 February 2014, the appellant lodged a complaint of non-payment of salaries, overtime and underpayment with the NEC for the Motor Industry.  The claim for non-payment of salaries is one for “non-payment of salaries from January 2014 to date.”  In capturing the submissions of the parties before her, the arbitrator captures that the appellant submitted that he was not paid his salary for January 2014.

It appears to me therefore that the appellant never really put his claim for February, March and April 2014 salaries explicitly before the arbitrator.  In which case the arbitrator cannot be faulted for not considering what was not put before her.  (See Chikanda v UTC SC 7/99.)

In any event the oral submissions before me were that from January to April 2014 the appellant was sitting at home waiting to be recalled at work.  This is contrary to the ground of appeal which states that appellant continued to work till end of April 2014.  The complaint to the NEC was also not lodged in April as alleged in the ground of appeal but in February.  Further, the claim that the February to April claim is for notice pay is an allegation which was not before the arbitrator.

The issue of the January 2014 salary is however different.  After making a finding that the appellant was owed his January 2014 salary which was found to be $390.21, the arbitrator erroneously deducted the amount of $250.00 and awarded only $140.21.

I find therefore that ground 1 of appeal partly succeeds.

Ground 2 – Overtime

The appellant argues that he should not have been denied his claim for overtime as the respondent had not disputed this.  Further, it is contended that the interpretation of clauses 25 and 26 of the Collective Bargaining Agreement S.I. 35/2011 was erroneous as they do not provide that quantification of overtime claims is precluded if it happens beyond the weekly or monthly times when this should be paid.

It was argued for the respondent that the claim for overtime failed on account of lack of evidence and not on an interpretation of clauses 25 and 26 of the Collective Bargaining Agreement.  It was advanced that the appellant did not show that he had been requested to work overtime and how many hours of this he had worked.

I have perused the record.  In the letter of complaint, (page 25 of record) this is what the appellant states in relation to overtime.

“In addition to that Dek Petroleum never paid us overtime as we worked 2 weeks in a month from 0600 to 2030 making it a total of 14 hours 30 minutes a day and we worked 14 to 15 days in a  month, making a total of 214.5 hours a month.  Also we worked on public holidays and we where (sic) never paid.  We raised the matter with our employer and she promises (sic) to address it but never fulfilled the promise.”

In the respondent’s response to the claim, on record page 26, there is no response to the claim for overtime yet the respondent addresses in detail the salary rate and underpayment as well as the economic hardships it was undergoing.  The arbitrator does not even capture in her award that the respondent at any point refutes the claim for overtime.  Instead she goes into an expose on what clauses 25 and 26 of the Collective Bargaining Agreement say, quoting them in detail and concluding that the employer has to request the employee to work overtime before engaging on overtime.  She then goes into the rationale for the provisions that overtime should be paid weekly or monthly so as to make its administration easier.

The arbitrator does not address what an employee whose employer refuses to process the overtime as prescribed should do and simply concludes that it would be an administrative hurdle to quantify overtime after a year.  This contrasts with section 13 of the Labour Act [Chapter 28:01] which provides for payment of any outstanding wages and benefits upon termination of employment.

I do not find a basis for the conclusion that it would be difficult to quantify appellant’s claim for overtime in the absence of documentation.

I wish to proceed by the simple rule of law that what is not denied must be taken to be admitted.  See Chihwayi Enterprises (Pvt) Ltd t/a Paint and Tools Hardware v Atish Investments (Pvt) Ltd SC 23/07.

It is my belief that based on the appellant’s undisputed claim of having worked 214.5 hours per month, the arbitrator could have easily used the Collective Bargaining Agreement S.I. 35/2011 to ascertain the overtime worked and the rate at which it was to be paid.  There was therefore a sufficient basis on which to quantify the overtime claimed.

The claim for overtime form public holidays worked is a different matter as the appellant has not provided particulars of the public holidays worked.  This claim was correctly dismissed for lack of evidence.

Ground 2 of appeal therefore succeeds

Accordingly;

The arbitral award is set aside and is substituted as follows;

“The claimant is entitled to payment of the following

Arrear salary for January 2014 - $390.21

Underpayments of salaries for December 2012 to December 2013 - $1519.78

Overtime for the period December 2012 to January 2014 calculated at the rate of 14 ½ hours per day for 15 days per month in terms of S.I. 35 of 2011

The matter is remitted back to the arbitrator for quantification of the overtime due to appellant as set out in paragraph 1 above.”

Mundia & Mudhara Legal Practitioners, respondent’s legal practitioners