Bloomrest Investments (Pvt) Limited v Nixon Takawira & 33 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/2023
HARARE, 29 MAY 2023 & 10 JULY 2023
CASE NO LC/H/73/23
In the matter between:-
BLOOMREST INVESTMENTS (PVT)
LIMITED
APPLICANT
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==============================IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/2023

HARARE, 29 MAY 2023 & 10 JULY 2023
CASE NO LC/H/73/23

In the matter between:-

BLOOMREST INVESTMENTS (PVT) LIMITED
APPLICANT

NIXON TAKAWIRA & 33 OTHERS
RESPONDENTS

Before the Honourable Kudya J

For the Applicant
S. Nyengere (Legal Practitioner)

For the Respondents
Shoniwa (Unionist)

KUDYA, J:

This is an appeal against the decision of the designated agent for NEC Engineering. Two issues were for contest before the Designated Agent i.e. the issue of arrear salaries and benefits on one hand and the issue of leave days on the other hand. At the onset of the appeal the appellant abandoned the first ground relating to salary arrears thus leaving only the issue of leave days.

The argument by the appellant is that the Designated Agent erred by ordering it to pay the employees leave days as per the schedule which the employees tendered. It argued further that it was not under any legal obligation to indicate the leave days due and those taken on the payslip. In the result is prayed that the appeal succeeds to the extend of vacating the Designated Agent’s decision vis the leave days.

It is settled that the duty of the appellate court is not to substitute its discretion for that of the trier of fact. See Hama vs NRZ 1996 (1) ZLR 664(S). In the case at hand the critical question to be argued is whether it can be said that the Designated Agent exercised her discretion in a grossly irregular manner by awarding the leave days as prayed for by the applicants. A reading of the record of proceedings before the Designated Agent shows that sample payslips for one A. Mutandangayi were tendered and those showed clearly that there was no indication of the leaves days and balance thereof. It would thus be difficult to accept the employers mere say so that the employees took leave. The payslips were created at the behest of the employer and it had all the information pertaining to its employees. It would thus be wrong for it to argue that it was not under any obligation to keep such records. See Section 12(2) (mandating employer to keep leave record). The court therefore does not find anything remiss about the Designated Agent’s reasoning that in the absence of contrary evidence from the employer vis the leave days she was at large to grant the employee’s’ prayer. It is apparent that the appeal has not been made out so it should fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed with costs.

John Magogo Attorneys, Respondent’s Legal Practitioners
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