Diamond Mining Corporation v Peter Tafa & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/2014
HARARE, 10 OCTOBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/203/2014

HARARE, 10 OCTOBER 2013 &			 CASE NO LC/H/129/2012

11 APRIL 2014

In the matter between:

DIAMOND MINING CORPORATION			APPELLANT

And

PETER TAFA 							1st RESPONDENT

And

DAURE TRUST							2ND RESPONDENT

And

SHACKY MUTUMBA						3RD RESPONDENT

And

CHIVHIMA ZEPHANIAH						4TH RESPONDENT

Before The Honourable B S Chidziva	:	Judge

For the Appellant		N M Phiri    (Legal Practitioner)

For the Respondent           R Mupita   (Legal Practitioner)

CHIDZIVA J:

The appellant is appealing against the arbitral award by Hon Arbitrator N A Mutongoreni dated 27 December 2012. The arbitrator ruled in favour of the respondents by stating that the respondents had been unfairly dismissed.

The briefhistory of the matter is that sometime in February 2011 the respondents were employed by the appellant as security guards. It is alleged that they were employed on contract with the condition that they were to undergo a probationary period of three (3) months. The respondents however told the court that upon the expiry of the three months’ probation period they were forced to sign another three months contract without being given their permanent status. In September 2011 the appellant then prematurely terminated the respondents’contracts. The respondents then approached the labour office to have the matter redressed. On 20 September 2011 the parties appeared before the Labour officer but they failed to reach an agreement and the matter was referred for arbitration. The arbitrator was supposed to determine:

Whether the employees were unfairly dismissed or not; and

The remedy thereof.

The arbitrator then found that:

“In short, as indicated above, one would say that the employees were unfairly dismissed. What is however interesting in this matter is the fact that the contracts of the employees were terminated two weeks prior to the expiry of their contracts. The unexpired periods of the employees’ contracts were paid by the respondent. The applicants accepted the terminal benefits and then complained later. Although in terms of law the employees would be deemed to have been unfairly dismissed, the payment of two weeks’ salary as notice became a remedy in this matter since in any event the contract was going to end after two weeks…”

The appellants in their grounds of appeal stated that the arbitrator:

Erred at law in failing to appreciate that the respondents had accepted and had been paid terminal benefits by the appellant.

Erred at law in coming to the conclusion that the respondents had been unfairly dismissed.

Erred at law in that there is no basis justifying the awarding of overtime, night allowance and back pay.

Erred in fact and thus in law in failing to appreciate that no admissible evidence was advanced to justify the quantification of overtime, night allowance and public holiday allowance.

Erred at law in coming to the conclusion that the third respondent was deemed a permanent employee.

The appellant therefore prayed that:

The appeal be allowed with costs; and

The decision of the learned arbitrator be set aside

The respondent in response told the court that:

The respondents were not paid all their benefits in terms of the law.

The respondents were unfairly dismissed since the dismissal was not in terms of the Code of Conduct.

The respondents were not paid overtime, night allowances and back pay, yet it is their entitlements in terms of the law.

The quantification of the award was just and proper and based on evidence which was put before the hearing to justify overtime, night allowance and public holiday allowances which were not paid.

The respondents’ contracts were unfairly terminated.

It is common cause that:

The contracts of employment were terminated upon giving notice of two weeks.

What is to be decided is whether:

The respondents were unfairly dismissed or not; and

The remedy that they shout get.

Section 12 B of the Labour Act states that:

“1.	Every employee has the right not to be unfairly dismissed.

2.	An employee is unfairly dismissed:

(a)	If, subject to subsection (3) the employer fails to show that hedismissed the employee in terms of an employment code; or

(b)	In the absence of an employment Code, the employer shallcomply with the model code made in terms of section one hundred and one (101)(9).”

The appellants did not prove that the dismissal was in terms of a particular Code or in terms of the National Employment Code i.e. Statutory Instrument 15 of 2006. The respondents’ contracts were terminated two weeks to their expiry and they were paid for the two weeks as notice. The issue of notice pay was therefore covered.

However the initial contracts it is alleged that they stated that the respondents would undergo a probation period of three months after which permanent contracts of employment would be signed if they had performed their duties well.

The appellant has argued that the respondents by accepting the terminal benefits they waived their rights. The appellants stated that this was laid out in the case of Chidziva & Ors v Zimbabwe Iron & Steel Company 1997 (2) ZLR 368. The appellants in their submissions before the arbitrator stated that they signed for termination of contracts under duress and they even raised a petition against the employer’s conduct but the appellant went on to terminate the contracts without even giving a reason for doing that. The respondents submitted that this came after Peter Tafa was assaulted by one of the respondents’ managers. This was made a police case and the manager paid a guilty fine.

The respondents have clearly stated that during the (6) six months they were overworking as they would work (12) twelve hours instead of (8) eight hours.

Appellant has not stated the money that was paid as night allowance. They have not disputed that the guards also performed night duties.  In the circumstances therefore the respondents’ claim stands as the appellants should not benefit from their wrong doing. Back-pay has been defined in the case of Madyara v Globe & Phoenix Industries (Pvt) Ltd  2002 (2) ZLR 269 as follows:

“Back-pay will be limited to a period from the date of wrongful dismissal to a date by which she could with reasonable diligence, have obtained alternative employment.”

In this case the respondents were employed in February 2011. They were dismissed in September 2011. Given the state of the economy this court is of the view that they would be expected to secure alternative employment within (12) twelve months.

If they were earning $250-00 per month it would mean that in twelve months they would earn US$250-00 x 12 = US$3000-00. This therefore means that their claims of US$706-73 and US$575-00 are very moderate.

The appellant has not given any reasons why they could be disputing Public Holiday Allowances. The claims that have been made by the respondents are in this court’s view reasonable. The appellants cannot benefit from its unlawful actions. They have to pay the penalty for the unlawful dismissal. The respondents signed contracts of termination of contracts under unfavourable conditions.

To that end therefore this court finds that the appeal lacks merit.

Accordingly the appeal be and is hereby dismissed with costs.

Muvingi & Mugadza, appellant’s legal practitioners

James Makiya, respondents’ legal practitioners