Delight Dairies v J. Katsande and Saul Siyeba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/706/2014
HARARE, 19 SEPTEMBER 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/706/2014

HARARE, 19 SEPTEMBER 2014	                         CASE NO. LC/H/312/14

AND 24 OCTOBER 2014

In the matter between

DELIGHT DAIRIES						Appellant

And

J. KATSANDE							1st Respondent

And

SAUL SIYEBA							2nd Respondent

Before The Honourable P. Muzofa, Judge

For Appellant	-	F.F. Hwenhira (Legal Practitioner)

For Respondent	-	T. Chigubhu (Trade Unionist)

MUZOFA, J:

This is an appeal against an arbitral award issued on 27 February 2014. The arbitrator having made a finding that respondents’ dismissal was unfair ordered that the respondents be paid US$1008-55 each within a month of the order.

Appellant, dissatisfied by the award noted an appeal to this court.  The grounds of appeal that appear on the notice of appeal are as follows;

The arbitrator erred and misdirected herself on a point of law by concluding that the respondents were unlawfully dismissed without any evidence whatsoever.

The arbitrator erred and misdirected herself by concluding the matter on technicalities without ordering a hearing de novo.

The arbitrator erred and misdirected herself by concluding that the respondents were underpaid when the statutory instrument in question had not been effected.  This was a (sic) misdirected as a collective bargaining agreement does not operate retrospectively.

Arbitrator erred and misdirected herself by not considering reinstatement as a principal remedy for unfair dismissal and ordering notice pay with no arguments on such quantification.

The background to this case is that respondents were engaged on verbal contracts from July 2012 to October 2012 as vendors.  Following allegations of taking leave of absence without authority the respondents were dismissed.  After the dismissal the respondent filed a complaint with the Ministry of Labour for unlawful dismissal and underpayments.

I propose to deal with the grounds of appeal in order that they appear.

Dismissal

The Labour Act [Chapter 28:01] (the Act) regulates the employment relationship in terms of section 12B which deals with dismissal and provides:-

Every employee has the right not to be unfairly dismissed.

An employee is unfairly dismissed –

If, subject to (3), the employer fails to show that he dismissed the employee in terms of an employment code made in terms of an employment code; or

In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).

The wording of the section implies that the employer is the one with the onus to show that the employee was dismissed in terms of an employment Code.  This position has been confirmed by a plethora of cases that a dismissal which is misconduct related should comply with the said section.  This point has ceased to be a moot point.  In casu the appellant alleged that the first respondent was properly dismissed for being absent from duty without authorisation.  The court was not referred to any process that took place in fulfillment of section 12B of the Act.  In other words the appellant says first respondent was properly dismissed but it was unable to show whether first respondent was dismissed in terms of any employment code.  There was none, the appellant therefore failed to discharge the onus placed upon it by section 12B of the Act.  I cannot fault the arbitrator’s finding on the first respondent.  There was an unfair dismissal as defined by section 12B of the Act.

In respect of the second respondent appellant submitted that he resigned there was no dismissal.  The arbitrator made a finding of fact that the second respondent did not resign.  This was because no resignation letter was produced before the arbitrator.  I must say in casu the appellant conducted his administration in the most unfortunate manner.  Every employer is required to keep certain records, it seems appellant had no records.  I am unable to impugn the arbitrator’s findings on this aspect, it cannot be said to be grossly unreasonable in its defiance of logic.  In any event this was neither alleged nor shown by the appellant.

The first ground of appeal has no merit and therefore should be dismissed.

The second ground of appeal relates to technicalities, that the arbitrator erred by disposing of the matter on a technicality.  This ground of appeal was neither amplified in the heads of argument nor even mentioned in the oral submissions made before this court.  To that extent the ground of appeal is taken as abandoned.

Whether respondents were underpaid.

It was submitted by the appellant that the arbitrator applied an incorrect collective bargaining agreement.  However the incorrect collective bargaining agreement was not stated.  The record of proceedings has two documents being public announcements for the periods January 2013 to 31 December 2013 and the second one for the period 1 January 2012 to December 2012.  These were announcements of the minimums and actuals for the industry, NEC Food and Allied industries.  The respondents were employed as vendors and or general hands in grade one.  This was the arbitrator’s finding.  The 2012 collective bargaining agreement indicated that an employee in grade one was entitled to a minimum wage of US$242,35.  This is the minimum wage that the arbitrator used to come to the figure that appellant was supposed to pay.  The respondents were being paid US$140,00 per month.  This court cannot find fault with the arbitrator’s reasoning.  I agree with the arbitrator the applicable collective bargaining agreement was for 2012.

The appellant’s assertion that an incorrect collective bargaining agreement was used is without substantiation and therefore meritless.  It is accordingly dismissed.

The remedy

It was submitted by appellant that the arbitrator should have ordered reinstatement instead of quantifying the respondent’s dues.  Precedent show that reinstatement is the primary remedy for an unlawful dismissal.  However where the circumstances of the case show that reinstatement is no longer tenable damages can be awarded.  The arbitrator in casu did not explore the reasons why she awarded the notice pay and the cash in lieu of leave.  The court however will still uphold this decision for the following reasons.  It was submitted by appellant that it has since closed down.  Evidence was lead from one Mudoti who was the manager of appellant.  Mudoti’s evidence was that appellant had purchased inputs in bulk when it closed it sold all the inputs including the stickers with appellant’s name to a company called Pelco.  Pelco has continued to use the inputs to date.  A person from Pelco one Philimon Mvarume gave evidence confirming the said position.  Respondents disputed this evidence and produced samples of drinking yoghurt bought from a vendor with appellant’s stickers.  This was evidence that the appellant was still operating.

In my view the fact that products with appellant’s trade mark are still in the market shows that appellant could still be operational.  Appellant maybe operating at a smaller scale.  Actually the evidence of Philimon was that Pelco was producing products for the appellant.  In view of that clearly there has been some administrative changes within appellant such that reinstatement cannot be tenable.  In addition the Appellant was a small entity, and it is likely that relations between the parties have been strained by the litigation.  Accordingly the justices of this case require that respondents be paid off, reinstatement is no longer tenable.  .

In view of the above the court comes to the same conclusion as the arbitrator albeit for different reasons.  This ground of appeal should therefore be dismissed.  Having made the foregoing findings, the inescapable conclusion is that the appeal should be dismissed.  Accordingly the following order is made.

The appeal lacking in merit be and is hereby dismissed with no order as to costs.

CHATSAMA & PARTNERS, Appellant’s legal practitioners