Cleopatra Mhariwa N.O. v Empire College & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/124/20
HELD AT HARARE ON 10th FEBRUARY,2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/124/20

HELD AT HARARE ON 10th FEBRUARY,2020     CASE NO. LC/H/LRA/283/19

AND 5TH JUNE, 2020

In the matter between:-

CLEOPATRA MHARIWA N.O.						Applicant

vs

EMPIRE COLLEGE								1st Respondent

And

SHAKENATE CHARI							2nd Respondent

Before the Honourable Mhuri, J.

For Applicant		:	In Person

For 1st Respondent	:	Mr. Stuart Cheure (Principal)

For 2nd Respondent	:	In Person

MHURI J.

This is an application in terms of Section 93 (5a) and (5b) of the Labour Act [Chapter 28:01] as amended for the confirmation of a draft ruling issued by the applicant in the matter between SHAKENATE CHARI and EMPIRE COLLEGE.  The matter involved non-payment of terminal benefits and underpayment of wages,  wherein Shakenate Chari (2nd respondent) was claiming of a total of $34 363,99 broken-down as follows:-

underpayment of wages $484 x 5 yrs 	= 	$29 040.00

leave days 40.33 x 5 years			=	    2 419.00

gratuity 10%					=	    2 904,00

TOTAL						=	$34 363.99

1st respondent’s submissions to the claim was that 2nd respondent’s conditions of service were as per contractual agreement the two had entered into and was binding.  2nd respondent was paid her terminal benefits, she was entitled to gratuity of $65,00 as she had completed 5 years and that she was entitled to $390 for leave days.

After considering the parties submissions, the applicant found that the parties terms of the contract were ultra vires the provisions of the law therefore not legal.  Part of the period of the claim was prescribed and therefore 2nd respondent was only entitled to 21 months.  2nd respondent was a clerk and therefore was in grade 5 and entitled to $374,00 salary per month in terms of Statutory Instrument 60 of 2013 as read with Statutory Instrument 102 of 2014.  She found that 2nd respondent was under paid by $244,00 per month as she was being paid $130,00 per month.  Since gratuity and leave days were not disputed she granted them but using the salary of $374,00per month.

In the result, applicant then issued a ruling to the effect that:-

2nd respondent is entitled to underpayments, cash in lieu of leave days and gratuity to the tune of $5 124, $1 122 and $187 respectively

Before this Court, 1st respondent opposes the application for the confirmation of the ruling on the basis that the matter was not properly handled by the applicant as there was no adequate notice given, applicant had an interest in the matter as she selected certain aspects of 1st respondent’s and 2nd respondent’s contractual agreement.  It was also argued that there was a contractual agreement between the parties wherein 2nd respondent agreed to be paid $130,00 per month as her salary.  He prayed that the matter be referred to another Designated Agent for a rehearing.

This application is anchored on the contractual agreement between the two respondents.  Was the applicant correct in holding that this contractual agreement is ultra-vires  the law and therefore illegal.  This agreement filed of record, duly signed by both parties reads in part:-

“This agreement is between the above mentioned parties in which Empire College operating in the education sector in 2013, accordingly in education sector there are Statutory Instruments which bind the relationship between employer and employee as provided by the Labour Act [Chapter 28:01].

According to section 25 of the Labour Act [Chapter 28:01] the parties had agreed that Empire College as the employer is not in position of an exemption which will exempt it from paying the minimum wages as stipulated by Statutory Instrument 60 of 2013 and on grades provided in Statutory Instrument 102 of 2014 and as a result the employer through the workers committee to waive the right of the employees due to the fact that there is need for the employees to be employed but because of the Statutory Instrument and the catchment area the employer cannot afford employing any one hence there will be no employment and also no service to the community.

TERMS AND CONDITIONS OF THE AGREEMENT

Wages/Salaries per month shall be $130,00 (hundred and thirty dollars only) instead of that one provided in statutory instrument 60 of 2013 for a person working as a clerk.

There shall be no issue of Housing/transport allowance as specified by statutory instrument 60 of 2013 /102 of 2014 since the institution is still on its formative stage and employees will be coming within the vicinity area.

…………………………………………….

……………………………………………

……………………………………………”

From the above extract, I do not find fault in the applicant’s holding that the parties contractual agreement was ultra vires the law and therefore illegal.  Clearly the agreement was entered into with a view to circumvent the provisions of the applicable laws governing the relationship between the parties.  Even though signed by the 2nd respondent, it is my view that the doctrine of caveat subscriptor does not apply in this case.

Section 20 of the Labour Act has provisions which cover the respondents situation.  It gives the Minister the power by statutory instrument, to specify the minimum wages and benefits in respect of a class of employees.  Statutory Instrument 60 of 2013 and Statutory Instrument 102 of 2014 are such instruments.

Subsection (2)(b) provides:-

“every agreement or arrangement of any kind whatsoever, express or implied, whether made before or after the date of commencement of such minimum wage notice by an employer or employee to whom such notice relates, which conflicts with such notice shall, to the extent of such conflict, be construed with such modifications qualifications, adoptions and exceptions as may be necessary to bring it into conformity with such notice.”

No such effort was made by 1st respondent to bring the agreement into conformity with the above.  Instead the agreement was made in total violation of the above.

Subsection (3)(a) makes it an unfair labour practice to contravene the notice issued by the Minister.  2nd respondent was alive to this when it entered into this agreement.  In the case of

CHIOZA vs SIZIBA SC 4/2015

citing with approval the case of

DUBE vs KHUMALO 1986 (2) ZLR 103 (S)

the Court observed that the courts should not normally condone contracts that are ultra vires  the law, either wholly or with one specific clause seeking to avoid the law.  It is based on the principles that the Court cannot aid a party to defeat the clear intention of an ordinance or statute; that courts of justice cannot recognize and give validity to that which the legislature has declared shall be illegal and void; and that the courts will not permit to be done indirectly and obliquely what has expressly and directly been forbidden by the legislature.

In casu, as alluded to, the agreement by the parties was ultra vires the law and the applicant was correct in holding it so.  I therefore find no merit in the 1st respondent’s reason for opposing the application.

2nd respondent indicated that she was opposing the application.  I observed that she did not understand what all this entailed.  She said she was opposing the 1st respondent’s response to the application.  She did not address me on her reason for opposing the application.

Applicant in her submission amended her ruling in relation to the total amount she awarded.  She had omitted to add the figures for gratuity and leave to the figure for the underpayment of wages.  The corrected figure to read:

$5 124	as underpayment

$1 122	as cash in lieu of leave

$   187	as gratuity

$6 433	as the total

She also prayed for costs in the amount of $174,00.

Having considered all the parties submissions, I do not find any cogent reason not to confirm the ruling.  The other procedural issues raised by the 1st respondent will not assist him.  He had the opportunity to seek postponements which he did and was granted.

Accordingly I make the following order

That the ruling by applicant dated the 15th July 2019 in the matter between SHAKENATE CHARI and EMPIRE COLLEGE be and is hereby confirmed with amendments.

That 1st respondent (EMPIRE COLLEGE) pays 2nd respondent (SHAKENATE CHARI) a total sum of $6 433,00 being for underpayments, gratuity and cash in lieu of leave within 30 days of this Order.

That 1st respondent pays applicant a sum of $174,00 being costs of this application within 30 days of this Order.