Allfix Security v Never Magwenzi & 4 Ors

### Preamble
IN THE LBOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/632/14
HELD AT HARARE 19TH JUNE 2014
CASE NO LC/H/700/13
& 26TH SEPTEMBER 2014
JUDGMENT NO LC/H/632/14
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IN THE LBOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/632/14

HELD AT HARARE 19TH JUNE 2014			CASE NO LC/H/700/13

& 26TH SEPTEMBER 2014

In the matter between:-

ALLFIX SECURITY				Appellant

And

NEVER MAGWENZI					1st Respondent

NOEL DEKETE					2nd Respondent

STEPHEN MAPANZURE				3rd Respondent

CRISPEN MAKWIRA				4th Respondent

CRISPEN MAINGA					5th Respondent

Before The Honourable, G Mhuri, Judge

For Appellant			  		Ms T Temba (Legal Practitioner)

For 1st ,3rd ,4th & 5th Respondents 	Ms T.P. Mateisanwa (Legal Aid Directorate)

No appearance for 2nd Respondent

MHURI, J:

This is an appeal against an arbitral award, the grounds of appeal being that:-

the Arbitrator erred in law

in holding the appellant committed an unfair labour practice by terminating respondents’ contracts of employment.

Ordering appellant to reimburse respondents’ money deducted for training when there was no basis at law for such a finding.

In directing appellant to pay respondents’ 2 weeks notice pay when there was no basis for such a finding as respondents had been paid in leave of 2 weeks notice.

In ordering appellant to pay 3 months salary to the respondents yet respondents had not worked in May, June and July and had been paid all their arrears salaries.

In ordering appellant to pay transport and housing allowances for May, June and July yet their contracts had already been terminated.

The appeal is totally devoid of any merit, I must say.  For appellant to attack the Arbitrator’s finding that appellant committed an unfair labour practice, in view of the overwhelming evidence pointing to that, offends the  minds of right thinking people.  I say so in view of the following:-

according  to the 1st contract of employment, respondents were engaged on the basis of a 3 months non renewable probationary period upon completion of which one could be offered permanent position. The salary was $300.00 per month.

upon completion of the probationary period, respondents were not advised that they were unsuccessful in their probation and hence could not be offered permanent employment.

instead, upon completion of the probation they were made to sign 3 months fixed term contracts commencing 1 February to 30 April 2010.

This was not stipulated in the initial contract.

At the expiry of this Fixed Term Contract, respondents were again required by appellant to sign another contract, this time with less favourable conditions.

This was declined by respondents rightly so in my view.  See page 4 (a).

I did not hear and nor is it apparent from the record

that these changes of the contracts and variation of terms were ever discussed with the respondents.  All appellant said was that respondents signed the second contract and are therefore bound by it.  The same however could be said about the initial contract.

With such evidence before her, I do not faulter the Arbitrator when she held that appellant committed an unfair labour practice.

Appellant refused to have any dialogue with respondents vis a vis the terms of the new contract.  Instead it wrote letters to respondents ordering them to surrender its uniforms despite the fact that they were reporting for duty.

At the end of it all, by a letter dated 8 July 2010

appellant advised respondents that it was not going to renew their contracts when they expire on the 16 July 2010.  It is clear and can rightly be concluded that this was as a result of the refusal by respondents to sign the new contracts which had the unilaterally varied terms.

This ground of appeal is dismissed.

It was another unfair labour practice by appellant to deduct money for training on the basis that the training benefited respondents.  The Arbitrator rightly found that the training benefited both parties.  The certificates filed of record show that the course was relevant to the duties they were employed to do (guard duties) “mine security guard course”. Respondents were conducting guard duties at a mine in Chiadzwa.

To that end I find that the Arbitrator did not err in ordering that appellant reimburses respondents the amounts it deducted.  This ground of appeal fails.

Upon being asked as to whether respondents were paid in lieu of 2 weeks notice, appellant’s counsel responded that that was the instruction from her client.  Asked how and to show proof, she was unable to prove it.  It was respondents submission that no money whatsoever was paid to them for the 3 months May, June and July.

I do not faulter the Arbitrator when she ordered that appellant pays respondents

two weeks notice pay

3 months salary

Housing and transport allowance

Appellant’s submission that respondents had already been

paid, was not persuasive  at all.  There was no proof tendered in support of this.  It boggles the mind, how appellant could have paid respondents these amounts when it was its argument that for no work tendered respondents should not be paid and that respondents had terminated the contract by their refusal to sign ne contracts.

The amounts ordered by the Arbitrator were found to be

ex – contractu and  also provided for in terms of section 12 (4) (d)of the Labour Act [CAP 28:01].

All in all, I find the arbitral award to be unassailable and therefore can not be impugned.

Accordingly the appeal must fail.

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

The arbitral award be and is hereby confirmed in its entirety.

Masawi & Partners, appellant’s legal practitioners

Legal Aid Directorate, respondents’ legal practitioners