Angeline Sithole v (Respondent not named)

### Preamble
JUDGMENT NO/MC/01/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE, 29TH MAY, 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE, 29TH MAY, 2015                           CASE NO. LC/MC/71/14

AND 5TH FEBRUARY, 2016

In the matter between:-

ANGELINE SITHOLE                                                           -APPELLANT

The appeal was noted against an arbitral award handed down on 14 July 2014. The appeal is opposed.

The material background facts are as follows;

The Appellant is employed by the Respondent as Cashier. She referred a complaint of unfair labour practice for conciliation on the basis that her employer (the Respondent) had forced her to go on 48 days’ vacation against her wish. The vacation was from 1st May, 2013 to 17 June 2013. The matter was referred to arbitration. At arbitration the Appellant submission was that there was bad blood between her and her employer. She had joined the company in August 2011. She was initially engaged on the basis of a three months fixed term contract. When that contract expired she was not requested to sign another contract. On the basis of Section 12 (3) of the Labour Act [Cap 28:01] she was deemed to have become a permanent employee. She was dismissed from employment in November 2012 when she refused to sign a new contract of employment on the basis that she regarded herself as being a permanent employee. After pursuing the matter the Appellant was reinstated through an order by an Arbitrator for reinstatement with effect from the date of dismissal 8th March 2013. It was Appellant submission Respondent conceded to the decision. She was then reinstated. In October 2013 however the Respondent asked her to proceed on 48 days’ vacation leave even though she had not applied for same. She believed the leave was imposed in retribution by the employer because of the bad relationship between them. As this forced leave was against her wishes, she believed the employer had violated Section 2A (1) (e) which urges an employer to consult employees in matters affecting their rights and interests in the work place. The Respondent was therefore guilty of unfair labour practices on the basis that it had forced her to go on vacation leave against her wish, had asked her to take leave which she had not applied for, it had asked her to take leave without asking her to fill in an application form, in failing to consult her before granting leave as required under Section 2A, in practising discrimination and victimisation through granting of the forced leave.

In relief the Appellant was seeking a refund of her 48 vacation leave days taken without her consent and to retain the full salary accrued during the period of leave. The Respondent through its representative denied the existence of bad blood. The Respondent submitted that every employee was asked to proceed on leave purely as a business decision to arrest the accrual of vacation leave days beyond the employer capacity to pay should an employee decides to redeem the days. The Respondent disputed that leave was targeted at only Appellant but cut across all the workers in the Respondent group. There was a selection process depending on the nature of one’s job and the need for services. Employees were also selected on the basis of departmental value and contribution to the organisational key result areas. Those with less work and those with more vacation days were prioritised and selected to go on leave. The Respondent submitted that Appellant was treated fairly in the circumstances.

The Arbitrator in his award examined the legal provisions as to who has the legal right to grant leave. He found that the employer has the legal right to grant leave. The Arbitrator also found that the circumstances of the case the Appellant claims were unwarranted. She had not been forced to go on leave. He also dismissed Appellant claims that she had been discriminated on the basis of sex and creed. The employer had in compliance with Section 2A (1), 25 (5) and 25 (6) of the Labour Act [Cap 28:01] consulted employees prior to sending then off on vacation leave.

The Appellant was dissatisfied with the award and noted the present appeal. her grounds of appeal are captured in a long and winding affidavit. The main issues that arise in my view are the following:

Whether it is lawful for the employer to direct an employee to proceed on leave on specified dates without the employee’s consent.

Whether the Arbitrator misdirected himself on the facts in then concluding that no unfair labour practice had been perpetrated in this case.

I shall proceed to determine the issues

The main point raised in the appeal is that the Arbitrator grossly erred and seriously misdirected himself on the facts in arriving at the conclusion that an employee can be forced to go for vacation leave without their consent. Instead he ought to have found that although the employer has the ultimate decision under the Act to grant/deny vacation leave the employer however has no right to dictate the dates on which the employee proceeds on leave it is up to the employee to decide on the actual dates to proceed on leave. Finally the Appellant makes the point that the Labour Act [Cap 28:01] in Section 14(a) makes no provision for mandatory vacation leave and the Arbitrator ought to have reached the same conclusion.

The Respondent position is that Appellant was not forced to proceed on vacation leave. Instead Respondent requested Appellant and other employees to proceed on leave as a means to sustain the business in view of the harsh economic environment. Section 14(a) (2) of the Labour Act [Cap 28:01] imposes the duty on the employer to grant or decline an employee vacation leave. In this case Respondent had actually communicated with the employees prior to effecting the decision. The Respondent position is that it was within its discretion as the employer to determine as to which employee went first and which employee went last depending on certain factors such as the nature of the job how many days’ vacation/leave the employee had etc. In Appellant case Respondent considered that she was still nursing a baby and it would be more appropriate to allow her to proceed on vacation leave before others who may have had 90 vacation leave days. The Respondent submission was that the Arbitrator did not err or misdirect himself on the facts.

In regards the issue as to who decides when an employee goes on vacation leave; the employer or the employee. Section 14(a) (2) of the Labour Act [Cap 28:01] provides that an employee can accumulate paid vacation leave upto a maximum of 90 days. Any vacation leave which is beyond 90 days is liable to be forfeited. Whilst the Labour Act [Cap 28:01] does not allow an employer to force an employee to take vacation leave that has accrued the Act however allows the employer to regulate the timing or utilisation of vacation leave days. The timing of vacation leave days is not left to the employee’s decision alone. The employer has to give due regard to its operation and business requirements before granting an employee as provided under Section 14A (2) of the Labour Act [Cap 28:01]. It is for this reasons the employer is given discretion to either allow or refuse to grant vacation leave. It is not correct therefore as alluded by the Appellant that the employer would have needed Appellant consent for her to go on leave during the particular days.

The Arbitrator found that the employer had made the decision to send its employees with accrued vacation leave days to on vacation. The decision was taken on the basis of operational and business requirements especially taking into account the harsh economic environment prevailing then. The Respondent having tendered evidence before the Arbitrator to substantiate its position the Arbitrator then concluded that Appellant had not been forced to go on leave. This Court in the in the absence of any further evidence placed before it cannot lightly interfere with that decision. The Arbitrator clearly did not err in the conclusion reached in this regard.

The second issue relates to the Appellant claim of an unfair labour practice. Before the Designated Agent she claimed that an unfair labour practice was perpetrated when Respondent forced her to go on 48 days’ vacation leave. The Arbitrator in his award found that no unfair labour practice had been perpetrated.

The Labour Act [Cap 28:01] in Section 7 specifies certain acts as constituting unfair labour practice. The actions allegedly taken by the Respondent are not outlawed under that section as an unfair labour practice. The claim by the Appellant was therefore not properly taken before the Arbitrator.

The Appellant has also raised in her appeal the employer actions were in fact discriminatory and were meant to frustrate her. The Respondent in counter submitted that the decision to send employees on vacation leave did not affect Appellant alone. Other employees were also told to proceed on vacation leave. The employer however used its discretion to determine who proceeded first or last depending on factors such as the duties, the department the employee was engaged in e.t.c. the Respondent denied that its decision had resulted in Appellant being discriminated against.

The Arbitrator found that the Respondent had asked its employees with accrued vacation leave to go on vacation leave as an organisational survival strategy. The Respondent had prior to that properly consulted and informed the employees as provided under Section 2A (1) and 25 A (5) and 25 (6) of the Labour Act [Cap 28:01]. The Arbitrator also found that there was no evidence that Appellant had suffered gender discrimination or victimisation since all the other workers were affected by the exercise. In reaching his conclusion the Arbitrator considered that Appellant had not placed before him any evidence to prove that she had in fact been discriminated by the decision taken by the Respondent.

A claim for discrimination is normally brought under Section 5 of the Labour Act [Cap 28:01]. The test for discrimination is contained in Section 5(6) which provides as follows;

“6.	For the purposes of this section, a person shall be deemed to have discriminated if his act or omission causes or is likely to cause persons of a particular race, tribe, place of origin, political opinion, colour, creed or gender to be treated –

less favourably; or

more favourably

than persons of another race, tribe, place of origin, political opinion, colour, creed or gender, unless it is shown that such act or omission was not attributable wholly or mainly to the race, tribe, place of origin, political opinion, colour, creed or gender of the persons concerned.

In order to establish her claim for discrimination the Appellant ought to have placed before the Arbitrator evidence that the decision taken by the Appellant had resulted in her being discriminated on the basis of gender. She therefore carried the burden to prove the existence of discrimination e.g. that the decision taken by employer to be send her on leave was taken purely on grounds of her gender. She had to prove that the fact that she had been asked to proceed first resulted in her receiving less favourable treatment compared to the male employees; the record shows that no such evidence was led by the Appellant leading to the Arbitrator dismissing her claim.

The Arbitrator was therefore correct in his conclusion reached.

The Appellant has also challenged the arbitral award on the basis that the Arbitrator did not properly analyse the documentary evidence placed before him such as the evidence of the pay roll which tended to reveal that some employees who had 90 days’ vacation leave had not been asked to proceed on leave. The Appellant suggests that the Arbitrator ought to have raised more questions. The Appellant submission suggests a wrong approach. The onus lay on the Appellant as the claimant before the Arbitrator to prove her claim that she had been discriminated by the decision taken by the Respondent. The onus was not on the Arbitrator to investigate Appellant allegations and prove them for her.

Finally the Appellant submitted that the Arbitrator grossly erred in accepting the Respondent decision was made in good faith when no documentary evidence of financial incapacity had been placed before him as required under Section 76 of the Labour Act [Cap 28:01]. The Arbitrator in his award referred to evidence that had been placed before him to show that a meeting had been held at which employees were advised of employer’s decision to send some employees on vacation leave due to the harsh economic environment. The Arbitrator on the basis of that evidence placed before him then concluded that the employer had taken the correct measures to avert the harsh economic environment. The Arbitrator’s finding cannot lightly be interfered with in the circumstances.

In the circumstances the following order is granted.

The appeal be and is hereby dismissed with no order as to costs.