Destiny For Africa Networks v W B Magwaza N.O and Precious Musengeyi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/73/25
HARARE, 4th FEBRUARY 2025 AND
CASE NO LC/H/956/24/
26th FEBRUARY 2025
---------


IN THE LABOUR COURT OF ZIMBABWE

HARARE, 4th FEBRUARY 2025 AND 26th FEBRUARY 2025

DESTINY FOR AFRICA NETWORKS

W B MAGWAZA N.O

PRECIOUS MUSENGEYI

JUDGMENT NO LC/H/73/25

CASE NO LC/H/956/24/

APPLICANT

1st RESPONDENT

2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant

For Respondent

-	T T Shonhiwa, Representative

-	B. Pesanayi, Attorney

MUSARIRI, J:

On 5th August 2024at Marondera, 1st respondent, in his capacity as an Arbitrator, issued an award wherein applicant was ordered to pay 2nd respondent an amount of $1,284.00 in respect of underpayment of wages. Applicant than applied to this Court for the review of the award in terms of section 89(1)(d1) as read with section 92 EE of the Labour Act Chapter 28:01 hereafter called the Act, 2nd respondent opposed the application

Applicant’s founding affidavit pled as follows,

“The irregularity

1.5 The arbitrator’s decision is not in resonance with his reasoning and findings. In fact the reasoning and findings of the conclusions both of facts and law made by the arbitrator officer and the decision that he made are irrational

1.6 For instance, he made a ruling that the applicant appreciated the 2nd Respondent with residential stands and he turns on to ignore such an arrangement between the parties, in actual fact he was trying to draw a fresh agreement between the parties in circumstances were the parties has already agreed upon.

2 LC/H/73/25 LC/H/956/24

1.7 On a bizarre contrast to that finding, he went to make a finding that the 2nd Respondent was being underpaid in circumstances were the parties had agreed that the 2nd Respondent would be given three residential stands each worth more than USD 6 000.00 (totalling to US 18 000.00) as the full payment to be paid by the Applicant and he disregarded that by giving an award that the Applicant should pay US 1 284.00.

1.8 One would wonder why the arbitrator went on that far to punish the Applicant and nullify the certificate of settlement between the parties in circumstances where other parties have signed and agreed simply.

1.9 The findings are so contradictory that one cannot reconcile the decision by the Labour Officer. The decision is not proper and a sound decision envisaged by the law,”

On that basis applicant applied that the award be set aside.

2nd respondent countered through her opposing affidavit thus,

“3.1.1. It is not correct that the Arbitrator committed a gross irregularity in determining the matter in circumstances where parties had mutually agreed by way of a certificate of settlement before Mr Dauramanzi on 16th April 2024.

3.1.2 For the avoidance of doubt there was no certificate of settlement that was signed by the parties. The Applicant ought to have attached it if ever it exists.

3.1.3 It is not correct the Applicant paid me my outstanding arrear with 3 residential stands in Marondera. No proof has been proffered to that effect that stand were paid in lieu ofoutstanding arrears.

3.1.4 Further in the body of its disputation the Applicant says it owed US$380.00 and one wonders how Applicant can set off such a meagre figure with 3 residential stands. This with respect is too fanciful and clearly shows lack of sincerity from Applicant who is clearly not taking the court in its confidence.”

The Arbitrator’s analysis reads,

“From the submissions, I have come up with the following analysis;

-There is no dispute that the claimant is an employee of the respondent.

-I noted that claimant was earning $150 per month which was not gazetted by the NEC Constructions.

-The respondent argued that they have agreed $180 but did not put into considerations that they cannot agree something that is not in line with the law.

-I also noted that the respondent highlighted that the claimant refused to sign a contract of employment yet they did not follow proper proceedings since refusal to obey lawful orders from the employer is a misconduct which warrant hearing proceedings. I further noted that the respondent submitted that they gave the claimant a residential stands as a way of appreciating her which is good but one cannot pay something below the gazetted and covers up with a kind donation. I noted that the claimant raised the issue of harassment yet she did not submit anything.

Award…”

3 LC/H/73/25 LC/H/956/24

ANALYSIS

The quintessence of the arbitrator’s findings was that a “gift” to the employee by the employer cannot discharge the employer’s obligation to pay stipulated wages. Such conclusion is consonant with section 6 of the Act which proves that.

“(1) No employer shall

(a) Pay any employee a wage which is lower than that to fair labour specified for such employee by law or by agreement made under this Act;”

In any event the gift is disputed by 2nd respondent. The alleged agreement accompanying the “gift” is also disputed. Applicant failed to produce the said agreement despite the challenge in respondent’s opposing affidavit. Through a supplementary affidavit (filed without the Court’s leave) applicant attached 3 documents titled “Staff Stand Allocation”. Each document purports to allocate a stand to 2nd respondent “in lieu of salary arrears.” Each is signed for the employer by the Project Manager. But the portion for the employee’s signature is unsigned. The unsigned documents cannot bind 2nd respondent as alleged by applicant.

CONCLUSION

It is concluded that the Arbitrator’s award is consistent with the facts and law applicable. The alleged irrationality in the award was not proved.

Wherefore it is ordered that

1. The application for review be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E