Asina Musa v Danchip Enterprises (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/124/2016
HARARE, 11 FEBRUARY 2016
CASE NO. 
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/124/2016

HARARE, 11 FEBRUARY 2016    		         	CASE NO. LC/H/242/15

AND 4 MARCH 2016

In the matter between:-

ASINA MUSA							Appellant

And

DANCHIP ENTERPRISES (PVT) LTD				Respondent

Before Honourable P. Muzofa, Judge

Appellant			In person

For Respondent		L.T. Musekiwa (Legal Practitioner)

MUZOFA, J:

The appellant was employed by the respondent on a fixed monthly contract from August 2012 to May 2013 when the contract was not renewed.

The appellant filed a complaint with a labour officer that he was engaged as a carcass cutter grade 2 for the Commercial Sectors of Zimbabwe and was being underpaid.   The second claim was for payment for overtime worked.  The parties failed to agree at conciliation stage and the matter was referred for compulsory arbitration.

The arbitrator after considering the evidence before him dismissed the claim for overtime and awarded $208.00 as underpayment of wages.

The appellant was dissatisfied by the outcome and noted this appeal based on the following grounds.

That the arbitrator grossly misdirected himself on the facts of the matter despite the evidence that was placed on record concerning the appellant’s position and grade resulting in a flawed award.

The arbitrator grossly erred by ignoring the provisions of section 125 of the Labour Act [Chapter 28:01] as read together with section 24 (1) (a) of Statutory Instrument 45 of 1993 (CBA Commercial Sectors)

Appellant submitted that there was proof that he was a carcass cutter placed before the arbitrator in the form of salary schedules showing that he incurred butchery/stock shortfalls that showed he was not a mere general hand.  His duties included till operating.  Appellant sought to introduce a document allegedly authored by the respondent confirming that appellant was engaged as a carcass cutter.  The document was dated 30 May 2013.  The document was not before the arbitrator at the time of hearing.

The respondent distanced itself from the document.

The Court could not accept the document as it was not before the arbitrator this was clearly new evidence.  The court can only accept new evidence on appeal upon application to do so and leave granted by the Court.  In this case the appellant attached the document to his heads of argument.  That is unacceptable.  I did not consider the document in my judgment.

For the respondent it was submitted that appellant was engaged as a general hand.  His duties included weighing, cutting and selling meat to customers, cleaning the shop, off-loading goods received and any other duties delegated by management.

A point was taken that the parties were bound by the contract of employment.  The contract placed before the arbitrator identified appellant.

An employment relationship is born out of a contract and therefore is binding between the parties.

A copy of a contract signed by the parties show that appellant was a shop assistant and not a carcass cutter.  According to the respondent since appellant was a shop assistant he would do all the work as described he was not confined to cutting of meat.

In my view the contract of employment is conclusive, the appellant was a shop assistant, it is not for the courts to rewrite contracts for parties, the parties are bound by their contracts.

The butchery shortfalls cannot amount to evidence that the appellant was a carcass cutter.  I say so because among his duties set out by the respondent he would indeed cut meat for sale and at time operate the till.

The arbitrator’s finding cannot be said to be grossly unreasonable in the circumstances.  This court sitting as an appellate court cannot lightly interefere with the arbitrator’s finding unless it is shown that there was a clear misdirection see generally Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

Appellant has failed to show that there was a misdirection on the facts placed before the arbitrator.  I cannot fault the finding that the appellant was not employed as a carcass cutter.

In variably the reasoning in the award in my view is correct that the appellant was entitled to underpayments of $208 only.

The first ground of appeal is dismissed.  The second ground of appeal relates to overtime.  The arbitrator dismissed this claim on the basis that there was no evidence to prove the claim.

It is a celebrated principle of our jurisdiction that he who alleges should prove his case.

“The general rule in legal proceedings is that he who alleges must prove.  The claimant in civil proceedings must prove his claim in accordance with the standard of proof, and if he fails to do so, his claim must fail.”

Butler and Finsen, Arbitration in South Africa, Law & Practice, at 248.

The appellant claimed he commenced work at 0600 hours to 2300 hours daily but was not paid overtime.  No evidence was produced to confirm the submissions before the arbitrator.

The appellant relied on section 125 of the Labour Act [Chapter 28:01] “the Act” as read with section 24 (1) (a) of Statutory Instrument 45 of 1993 that employers are required to keep certain information on the employment relationship.  The records should show also the hours of overtime worked.

Indeed the law makes it mandatory to an employer to keep such records.  The Act sets out the sanctions for failure to keep such records.  However it does not require an employer to produce such records, the employer can only produce the records upon demand by a Labour officer a designated agent as the case maybe.

It is not for the employer to produce the evidence, it was for the appellant to request for the record showing that he worked overtime from the employer and thus produce evidence to prove his case.

The duty to keep records placed on the employer is not synonymous with the production of the evidence before a tribunal.  These two processes are independent of each other.  I cannot fault the arbitrator.  There was no evidence to conclude that the appellant worked overtime.  Therefore the claim was properly dismissed.

Accordingly the following order is made.

The appeal be and is hereby dismissed.

Musekiwa & Associates, respondent’s legal practitioner