Anglican Diocese OF Manicaland V Cecilia Chinguwo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/09/2016
MUTARE, 24 MAY 2016
CASE NO. LC/MC/09/2016
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/09/2016

MUTARE, 24 MAY 2016					    CASE NO. LC/MC/51/15

AND, 23 JUNE 2016

In the matter between:-

ANGLICAN DIOCE	SE OF MANICALAND			Appellant

And

CECILIA CHINGUWO						Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr P. Nyakureba (Legal Practitioner)

For Respondent		Mr T.J. Mupangwa (Legal Practitioner)

MURASI J:

The facts in this case are largely common cause.  Respondent was employed by the appellant.  Following respondent’s termination of employment by appellant, the dispute between the parties ended up in arbitration.  The issue before the arbitrator was to determine whether respondent was owed by the appellant in unpaid salaries.  The arbitrator found in favour of the respondent.  Appellant has appealed to this court.

Appellant’s grounds of appeal can be summarised as follows:

That the arbitrator erred in not finding that the claim for the years 2011 and 2012 were prescribed.

That the arbitrator erred in finding that the unfair labour practice was continuing.

That the arbitrator erred in awarding the sum of $3 709.15 in arrear salaries and benefits for the year 2015.

Appellant’s Counsel submitted that the finding by the arbitrator that the unfair labour practice was continuing as it was not supported by the facts.  He stated that the evidence showed that the appellant had paid salaries for 2013 and 2014 and the respondent had not timeously referred the unfair labour practice relating to the years 2011 and 2012.  He argued that in the circumstances it could not be held to be continuing. Appellant’s Counsel made the concession that the salaries for the years 2011 and 2012 had not been paid.  He further made a concession that appellant was liable to pay the salaries for the year 2015.

Respondent’s Counsel submitted that the finding by the arbitrator could not be faulted as the unfair labour practice was continuing.  It was argued that the appellant had chosen to start paying salaries in 2013 and ignored paying the other arrear salaries for 2011 and 2012.  Respondent’s Counsel further submitted that this was despite the fact that the appellant had written a letter in August 2012 to the respondent outlining the fact that it was facing financial challenges and would pay the arrear salaries as and when the situation improved.

The arbitrator addressed the issue of prescription in the following manner:

“The dispute in casu is pertaining to salary arrears.  The matter was referred for conciliation on the 26th of May 2015.  The fact that the applicant alleges that May 2015 salary were not paid implies that the dispute of salary arrears were in continuity hence prescription rule in section 94 (1) of the Act does not apply. Aside from the above, both parties agreed to a letter dated the 27th of August 2012 signed by Rev. L.T. Chigwida that the appellant would be paid her salaries once financial position of the diocese base improved in the future.  The agreement was not closed to a certain period henceforth the respondent directly waived the issue of prescription.  Since an agreement of the salary arrears was agreed, any dispute of such payment would only arise on the lapse of the date of payment and then count two years thereafter for prescription.”

It was his reasoning that the appellant had promised to pay the respondent as and when the finances improved.  The arbitrator states that the issue of prescription could only arise when the appellant had discharged its obligations in terms of the letter of August 2012.  Whilst the reasoning of the arbitrator is difficult to follow, the issue to be determined is whether the unfair labour practice was continuing as provided in section 94 of the Labour Act [Chapter 28:01].  A look at the facts will assist in determining the issue.  Appellant did not pay the respondent the 2011 and 2012 salaries.  Appellant promised to pay these arrear salaries but started paying the 2013 and 2014 salaries.  Was there closure in the payment of 2011 and 2012 salaries? Clearly not.  The appellant still owed the respondent for those years.  Was the dispute still continuing when the matter was referred to the Labour Officer.  The answer should be in the positive.

It is the Court’s view that section 94 deals with jurisdictional prescription.  This means that a tribunal is disabled from entertaining a matter which has not been referred with the prescribed two years.  That tribunal would not have jurisdiction to deal with the matter.  However, when the arrear salaries are viewed in a different perspective, they are regarded as debts and therefore would, fall under the ambit of extinctive prescription.  In extinctive prescription, the running of such prescription is destroyed by the least acknowledgment of indebtedness.  Accordingly, it is sufficient if there is an acknowledgment of liability in respect of the debt even if there is a dispute as to the extent of it.  In De Beer vs Gedye and Gedye 1916 WLD 133 it was held as follows with the Court quoting from MERLIN-REPERTOIRE de JURISPONDENCE:

“If the debtor admits the debt by any kind:  if he pays a part of the capital, or the arrears without protest; if he gives security, if he asks for time to pay; if he gives the creditor the enjoyment of the hypothecated property; if he gives an order to pay although in his absence; if he consents to the thing claimed being placed in registration; the reserve, even though general of the sums due, made in a contract; in a ward, whenever anything is done between the creditor and the debtor, the possessor and the owner, which imports an acknowledgment express or tacit of the debt, of the right of the ownership, there will be a civil convential interruption which will prevent the running of prescription.”

I have referred to this scenario since a salary owed amounts to a debt and a litigant would not be able to plead prescription where there was an implied or tacit acknowledgment of a debt.  In casu, appellant wrote a letter in August 2012 informing the respondent that it was aware of the outstanding salaries and promised to pay them when the financial position improved.  This, in my view, served to arrest the running of prescription in as far as extinctive prescription was concerned.

Assuming that I am wrong in the above analysis, one would always look at the issue of justice and fairness.  The appellant acknowledges that respondent rendered services to the appellant in the years 2011 and 2012.  Is it therefore equitable for the appellant to refuse to pay the respondent hiding behind the principle of prescription?  It is the appellant who had written to the respondent that she would be paid in the future.  Appellant suddenly reneges on that undertaking and uses legal principle to thwart respondent’s entitlement.  This Court has been time and again referred to as a court of equity.  Would it be equitable for the Court to absolve the appellant from paying the respondent her just dues.  It has been said that fairness is not synonymous with lawfulness, the former being a flexible concept and conduct which may otherwise be entirely lawful may still be unfair.  I take comfort in the words of GOLDSTONE JA in National Union of Mine Workers vs East Rand Gold & Uranium Co. Ltd (1991) 12 ILJ 1221 (A) where he had this to say:

“In the exercise of its powers and the discretion given to it, the industrial court is obliged to have regard not only or even primarily to the contractual or legal relationship between the parties to a labour dispute.  It must have regard to the application of principles of fairness.”

I have alluded to the issue of extinctive prescription to show that appellant would be found to be liable to the payment of the arrear salaries concerned.  In the alternative, I have referred to the issue of equity and fairness which would make it equally unjust for the appellant to refuse to pay the arrear salaries for 2011 and 2012.  This in addition to finding that the arbitrator did not err in finding that the unfair labour practice was continuing.

It is my view that it will not be necessary to consider the last ground of appeal as there was a concession from Appellant’s Counsel that appellant owes respondent salary arrears for 2015.

In the result, and for the aforestated reasons the court is of the view that the appeal is devoid of merit and ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, be and is hereby dismissed.

The arbitral award of Honourable Charindeguta be and is hereby upheld.

Each party to bear its own costs.

Maunga, Maanda & Associates, appellant’s legal practitioners

Masawi & Partners, respondent’s legal practitioners