Ariston Management Services t/a Favco v Rambanayi Samubata

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/53/2016
HARARE, 5 OCTOBER 2015 &
CASE NO LC/H/407/2015
5 FEBRUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/53/2016

HARARE, 5 OCTOBER 2015 &			            CASE NO LC/H/407/2015

5 FEBRUARY 2016

In the matter between

ARISTON MANAGEMENT SERVICES				APPELLANT

t/a FAVCO

Versus

RAMBANAYI SAMUBATA					RESPONDENT

Before the Honourable R F Manyangadze J

For the Appellant	A K Maguchu  (Legal Practitioner)

For the Respondent	I Simbi  (Trade Unionist)

MANYANGADZE J:

This is an appeal against an arbitral award handed down on 22 April 2015, in terms of which the appellant was ordered to pay the respondent a total sum of US$25 500-00 as overtime.

The basic facts of this matter are common cause. The respondent was employed by the appellant as a Stock Controller. He held this position from March 2011 to November 2014, when he was dismissed from employment for misconduct. The circumstances leading to his dismissal are not the subject of this case. It suffices to state that after his dismissal, he lodged a complaint of non-payment of overtime, for the period he worked as Stock Controller.

Prior to his appointment to the position of Stock Controller, the respondent held the position of Stores Controller. This was his post since 1998, when he was employed by the appellant. No issues arise from that period of his employment. The dispute on overtime emanates from the date of his promotion to the post of Stock Controller.

After conciliation failed, the matter was referred to compulsory arbitration, leading to the afore said arbitral award.

The arbitrator found that the normal or regular working hours for the respondent were eight hours per day. For the period he worked as Stock Controller, he would clock in as early as 0500 hours, and clock out at 2200 hours. This amounted to 17 hours of work per day. This was evidenced by the clock sheets the arbitrator examined. This work pattern went on for the three years eight months the respondent executed the duties of Stock Controller. The hours worked in excess of the normal working hours, totalled 6045 hours, which translated to the sum of US$25 500-00 awarded by the arbitrator.

Aggrieved by the arbitral award, the appellant noted this appeal. The grounds of appeal are stated as follows:

“1.	The Honourable Arbitrator erred at law in finding that the respondent’s hours of work were eight (8) hours per day and consequently that the respondent had accrued overtime to the extent found or at all.

2. The Honourable Arbitrator erred at law and seriously misdirected himself on the facts in finding that the respondent was entitled to compensation for all or part of the hours worked in excess of eight (8) hours a day.

3.	The Honourable Arbitrator erred at law in plucking a figure from the air which he used as the basis for compensation for overtime.”

On the first ground of appeal, the appellant averred that the Labour Act, [Chapter 28:01] (“the Act”) does not specify the number of hours an employee must work. Section 6 (1) (b) of the Act prohibits an employer from requiring an employee to work more than the maximum hours permitted by law or by agreement made under the Act. It was therefore wrong for the arbitrator to hold that the respondent’s working hours were eight hours per day, as there are not prescribed in the Act.

The respondent, on the other hand, averred that the Act requires, in section 12 (2)(a), that an employer should, in a contract of employment, show the hours of work. The respondent further pointed out that his contract of employment specified normal working hours. These were from 0700 hours to 1600 hours Monday to Friday, and from 0700 hours to 1200 hours on Saturday. The respondent therefore had eight hours of work during week days.

The appellant seemed to contradict itself on this important point. It argued that since there was no collective bargaining agreement for managerial employees such as the respondent, his working hours ought to have been determined in terms of the contract of employment.

Paragraph 3 of the appellant’s heads of argument reads:

“The respondent’s contract of employment in clause 5 stipulates that his usual working hours were from 07.00 hours to 16.00 hours from Monday to Friday and from 07.00 hours to 12.00 hours on Saturdays. This makes it eight (8) hours a day except on Saturdays.”

Clause 5 of the respondent’s contract of employment reads:

“The normal working hours are Monday to Friday 07:00 hours-16:00 hours and Saturday 07:00 hours – 12:00 hours. Despite the specification of fixed working hours, all employees are expected to complete their work timeously, and also expected to assist other and/or departments when the need arises. In your position you will, more than likely, have to work outside normal working hours. You will not be eligible for overtime.”  (emphasis added)

From the foregoing, it can be taken as an established fact that the respondent’s contract of employment, made in terms of the Act, stipulated normal working hours up to a maximum of eight hours. It logically follows that any hours beyond that fall outside the contractually stipulated normal working hours. Anything over and above the contractually fixed hours would be overtime. It becomes another question whether or not the respondent is eligible for compensation for such overtime. The overtime is created by fixing, in the contract of employment as indicated, normal or regular working hours.

In the circumstances, the first ground of appeal cannot be upheld.

In the second ground of appeal, the appellant’s contention is that the respondent is not entitled to compensation for the hours worked in excess of the stipulated eight hours a day. The basis for this contention is the contract of employment. This contract provides that the respondent shall not be eligible for overtime. The respondent accepted this condition when he signed the contract. He cannot turn around and claim a right not conferred upon him by a contract he freely entered into. That is the pith of the appellant’s averment in this ground of appeal.

To buttress its averment, the appellant referred the court to the case of Kundai Magodora & Ors v Care International Zimbabwe SC24-14. This is captured in paragraph 7 of the appellant’s heads of argument as follows:

“The contract of employment stipulated that the respondent will not be eligible for overtime. Hence at a principal level he cannot claim overtime. Having accepted the terms of contract upon signing, he could not then claim overtime. See Magodora v Care international Zimbabwe SC 24-14 where the Supreme Court held:

The express provisions of the contract indisputably undermined and rendered untenable the appellants’ contention of having been unfairly dismissed. They were bound by the express terms that they had agreed to and could not then complain, notwithstanding those terms, that they had a legitimate expectation of being re-engaged. It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

This, it seems to me, is a clear and emphatic statement of the law by the Supreme Court. The Supreme Court was looking at the issue of fixed term contracts, which were repeatedly renewed. The appellants had entered into contracts of a fixed term nature. They were bound by the terms thereof. The court could not alter the contract for the parties. This was the essence of the Supreme Court judgment.

I must point out however, that the first part of the quotation in paragraph 7 of the appellant’s heads of argument is not accurately cited. Page 6 – 7 of the cyclostyled judgment, from which the quotation was taken, reads as follows:

“Apart from the clear wording of section 12B (3) (b), we cannot avoid the explicit provisions of the contracts in casu. The opening paragraph of each of the contracts stipulates that:

‘This contract shall in no way whatsoever lead to a legitimate expectation of further employment beyond the contract s date of termination.” This in itself, as was recognised by ZIYAMBI JA in Shamuyarira’s case, indisputably undermines and renders untenable the appellants’ contention of having been unlawfully dismissed. They are surely bound by the express terms that they have agreed to …’”

In the instant case, the court also “cannot avoid the explicit provisions” of the contract the respondent freely and voluntarily entered into.

At this point, it is necessary to re-state the relevant clause in the contract of employment. It has already been cited in connection with the first ground of appeal. It is also pertinent to a resolution of the second ground of appeal. The clause reads:

“The normal working hours are Monday to Friday 07.00 hours-16.00 hours and Saturdays 07.00hours-12.00 hours. Despite the specification of fixed working hours, all employees are expected to complete their work timeously, and also expected to assist other and/or departments when the need arises. In your position you will, more than likely, have to work outside normal working hours. You will not be eligible for overtime.” (emphasis added)

The clause is clear and unambiguous. It excludes compensation for overtime for the Stock Controller.

In both his written and oral submissions, the respondent avoided this contractual issue. Instead, he averred that eligibility for overtime was never an issue before the arbitrator. The issue was the extent of the hours for which he should be compensated, which the arbitrator determined and awarded him appropriately.

The respondent’s understanding of the issue that was before the arbitrator is flawed. It was not the question of hours of overtime. These were not in dispute. The arbitrator, having examined the time sheets, took these as an established fact. It was the question of eligibility for compensation that determined whether the excess hours so established, could then be compensated. In his analysis of the parties’ submissions, the arbitrator captured the dispute before him in the following clear terms:

“The issue that Claimant worked overtime is not actually in dispute. The parties agreed that Claimant worked overtime but the dispute is whether he is entitled to payment of overtime. Claimant is claiming payment of overtime, whilst Respondent is refuting arguing that he was a managerial and he signed a contract that barred him from payment of overtime.”  (emphasis added)

It is therefore not correct to say that the appellant brought a new issue on appeal. The respondent seemed to submit in paragraph 5 of his heads of argument, wherein he stated, among other things, that:

“Therefore, it is so apparent for the appellant that, an appeal is not an opportunity of referring new terms for arbitration.”

It is clear the arbitrator was seized with the question of the respondent’s entitlement to overtime, vis a vis the contract of employment he signed, which disentitled him to overtime.

How did the arbitrator resolve that question?

It seems to me the arbitrator approached the issue on the basis of equity, fairness and social justice. He endeavoured to achieve what was fair and equitable between the two parties. He relied much on the objective set out in section 2 A of the Act, which is:

“to advance social justice and democracy in the workplace.”

The following excerpts from the arbitral award reflect the reasoning of the arbitrator on the matter:

“The Labour Act section 2A states that “the purpose of this Act is to advance social justice and democracy in the work place, by (a) giving effect to the fundamental rights to employees as provided for in the Act. ‘Subsection (d) states that it seeks and ‘promote fair labour standards”.

“The respondent can argue that he signed for the new contract that prohibits Claimant payment of overtime. This tribunal noted with great concern that this overtime was to some extreme. If claimant was working overtime here and there it would be understandable. This tribunal noted that it was the habit of the respondent to make claimant work overtime to his benefit and to the detrimental of claimant’s social life and physical fitness.”

“Though the two parties entered into an agreement, the purpose of the Act is to guard against modern day slavery and exploitation. Employers would capitalize the current harsh economic environment knowing very well that no employee would refuse to sign a contract even if it is ultra-virus the Labour Act. There was no fairness and if the Claimant worked overtime here and there it would and otherwise be tolerated, but this was a routine. Therefore the respondent should pay the Claimant overtime for compensation of absurd longer hours worked by the Claimant”.

It is easy to understand or appreciate where the arbitrator was coming from when he made these remarks. The facts show that the respondent worked under harsh conditions. This is mainly reflected by the long hours he was made to put into his work.

It appears the employer took maximum, if not unscrupulous, advantage of the overtime exclusion clause in the contract the respondent signed, on his promotion to Stock Controller. The manner in which the contract was exploited portrays the appellant company in a bad light. If the appellant is concerned about its corporate image as an employer, it may have to consider negotiating with the respondent some form of ex gratia payment. I am of the view that the manner in which the appellant’s Stock Controller worked, though within the parameters of the contract that governed their employment relationship, seriously dents the appellant’s corporate image.

However, for the reasons already stated, the respondent cannot rely on the contract of employment for compensation for overtime. That contract clearly excludes such a claim. No legally recognisable basis has been demonstrated, such as duress or fraud, on which the contract could be vitiated.

Given the approach of the Supreme Court in the Magodora case, supra, the arbitrator’s approach to the instant case cannot be upheld. Otherwise the courts may end up varying contracts on the basis that they are unduly burdensome to one of the parties. The Supreme Court was very clear that the courts cannot do so.

On this basis alone, the appeal must succeed.

It is accordingly ordered that:

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 22 April 2015 be and is hereby set aside.

Each party bears its own costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners