Doves Funeral Assurance (Pvt) Ltd v Albert Mukozho

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/20/2021
HARARE, 4 NOVEMBER, 2020
CASE NO. LC/H/1045/14
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/20/2021

HARARE, 4 NOVEMBER, 2020		     	     CASE NO. LC/H/1045/14

AND 26 MARCH, 2021

In the matter between:-

DOVES FUNERAL ASSURANCE (PVT) LTD				Appellant

Versus

ALBERT MUKOZHO							Respondent

Before The Honorable L. Hove, Judge:

For Appellant:	Dube – Banda Nzirayapenga & Partners

For Respondent:	Mr Mutema ST – Stansilous & Associates

HOVE J:

This is an appeal against the award by honourable arbitrator Gurupira handed down on 27 October 2014.

The Claimant was employed by the respondent as a General Manager Administration and statistics. He was employed from June 2006 to June 2013 when his contract was terminated.

The arbitrator noted that there was no contract but from the payslip, he noted that he was entitled to a basic salary, club/gym allowance and a car benefit, and a 10% commission as per a memo communicated on 20 December 2010. A fuel allowance was also due and there was evidence that it had been cut by 50%, this created a dispute which was pending at the time of termination of contract.

The arbitrator awarded in the operative part of her order as follows;

“The respondent is hereby ordered to reinstate claimant’s allowances from the date respondent stopped paying these allowances to the date of termination of contract. Parties are hereby ordered to engage each other in the quantification of these allowances within 14 days from date this award is issued, and in the event that parties fail to agree either party may approach the tribunal for quantification”.

Having found that the allowances were payable, she ordered that the allowances be paid from the time the allowances were stopped. The parties were to try and agree on the amounts payable and in the event that they failed to agree, the parties were to approach the arbitrator for quantification.

The appellant was dissatisfied with the award and noted an appeal to this court. The grounds of appeal were:

1.	The arbitrator erred in law when she failed to fully determine the issues referred to her and requested the parties to negotiate further when conciliation proceedings had failed to resolve the issues.

2.	The arbitrator erred in law by finding that the respondent was entitled to the allowances and benefits when the contract of employment did not stipulate such benefits and allowances.

3.	The arbitrator erred in law in assuming that the appellant bore the onus of proving the non-entitlement.

4.	The arbitrator grossly misdirected herself on the facts which error amounted to an error in law when she found that;

a)	the respondent sealed the SSB contract without evidence.

b)	the allowances were due by implication from custom when

there was no evidence.

c) 	the allowances were contractual entitlements.

d)	medical aid was a benefit due to the respondent

e)	he was entitled to purchase the matter vehicle he was using

when he was not entitled to such a contractual benefit.

When the matter come up before the Labour Court, it was heard and appealed to the Supreme court which referred the appeal back to this court for a hearing denovo before a different Judge.

When the matter was set down, preliminary issues were raised by the appellant who argued that part of the respondent’s claims had prescribed at the time they were raised in April 2014 before a Labour Officer.

It was submitted that the law provides that Labour disputes prescribe after 2 years.

It was submitted that claims for clothing allowances, sports club (gym), medical aid and motor vehicle had prescribed.

The prescription is a point of law and can be raised at any time during the proceedings. See the case of Muskwe v Nyagina SC 17/12.

The point of law can thus be raised on the authority of the Muskwe case supra, even where it has not been pleaded.

The court will thus consider whether or not the claim had prescribed?.

The claims arise from entitlements that had been verbally agreed and paid to the respondent before the appellant stopped paying them. The record shows that the appellant raised a dispute with the appellant but the dispute remained outstanding until the appellant’s contract was terminated. It is alleged by the respondent that the:

Clothing allowance was stopped in 2008.

Sports club/gym allowance was stopped in 2008.

The vehicle ought to have been sold to the respondent in 2010.

It is clear therefore that more than 2 years had lapsed since the employer had stopped paying the allowances or ought to have sold the car to the respondent.

The Labour Act [Chapter 28:01] (the Act) provides in section 94 that;

Subject to subsection (2) no labour officer shall entertain a dispute or unfair labour practice unless -

(a)	it is referred to him; or

(b)	has otherwise come to his attention;

Within two years from the date when the dispute or unfair Labour practice first arose.

Subsection (2) provides as follows;

94(2) subsection (1) shall not apply to an unfair Labour Practice which is continuing at the time it is referred to or comes to the attention of a Labour Officer.

The prescriptive period of 2 years in terms of section 94(2) does not apply to acts of unfair Labour practice which are continuing at the time it is referred to a Labour officer.

The failure to pay an allowance or benefits is an unfair Labour practice in terms of section 8 as read with section 6(1)(a) and (c) of the Act. The employer has an obligation to provide conditions of service which the parties have agreed or as prescribed by law. In casu, the parties had agreed though it was not reduced to writing to pay an allowance such as clothing allowance, sports club allowances and medical aid allowances and the appellant had proceeded to pay these allowances to the respondent who accepted them thereby creating an agreement. The evidence placed before the arbitrator including the affidavits from witnesses and the payslips proved on a balance of probabilities that the respondent was receiving these allowances.

Failure therefore to pay what had been agreed constitute an unfair Labour practice. The duty or the responsibility to pay is not extinguished every month the employer fails to pay, it is a continuing failure to meet one’s obligations. The breach is therefore of a continuing nature for as long as the allowances remained unpaid.

On the authority of section 94(2) therefore the claims are not prescribed. The appellant’s point in limine therefore fails.

The respondent also raised a preliminary point and that is that the appellant’s grounds of appeal do not raise any point of law as is required by section 98 (10) of the Act.

The section provides that;

S 98 (10)

“an appeal on a question of law shall lie to the Labour court from any decision of an arbitrator appointed in terms of this section”.

The grounds of appeal raised in this appeal will be discussed hereunder to establish whether or not there is merit in the point raised as a preliminary point by the respondent.

First ground of appeal: that is; The honourable arbitrator erred at law in failing to fully determine issues referred for arbitration and requesting that parties engage in further negotiations when conciliation proceedings had failed to resolve the issues

What is a question of law was fully articulated in the case of Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S).

No point of law is raised in this ground. In fact the ground of appeal shows that the appellant does not fully appreciate the purport of the arbitral award.

The arbitrator fully determined the issues before him and made a finding that the allowances should be paid from the date they were stopped. The parties are not going back to negotiate these issues that have been through conciliation and determined by the arbitrator. The body of the award will show that the arbitrator addressed all the issues that is; clothing allowance, sports club allowances, fuel allowance, medical aid and car benefit (see page 12 to 14 of the record) and the commission. What the arbitrator indicated was to be negotiated by the parties was the quantum of damages. This is after she had made a finding on the substantive issues. She stated as follows;

“I do not see any reason why parties cannot sit to negotiate the quantum of incentives payable to the claimant.”

She had made a finding that the commission was payable.

Clothing allowance was not disputed and so was medical aid. The arbitrator made a finding in relation to the sports club benefit which was withdrawn without negotiating a variation that it must be paid. Fuel allowance was also conceded and in relation to the car benefit, a third party was only to intervene in the event that the parties failed to reach a settlement on the quantum. All the issues were thus dealt with. It is an untruth which is contained in the first ground of appeal that the arbitrator failed to decide the issues and referred the parties to go back to negotiations.

The ground of appeal thus based on a wrong understanding of the award cannot be said to be raising any point of law. The parties were to negotiate the quantum of allowances payable after a finding that they were payable had been made by the arbitrator.

The preliminary issue raised by the respondent accordingly succeeds in regards to the first ground of appeal. There is no question as to what the law should authoritatively state, no point of law is raised.

The second ground of appeal: that is; the honourable arbitrator erred at law in finding that the respondent was entitled to the allowances and benefits when the contract of employment did not stipulate such benefits and allowances and that they arose by implication as a result of custom and practice when there was no evidence to such presented

No point of law is raised in this 2nd ground of appeal. The appellant is saying that the arbitrator erred in making a finding when there was no evidence to support such a finding.

This ground of appeal is challenging a substantive finding on the basis that there was no evidence. Whether or not there was evidence to establish any disputed fact is a question of fact. No point of law arises. Appeals to the Labour court are only on points of law unless it is alleged that there was gross misdirection on a factual finding. There is no such allegation. The appellant, in the 2nd ground of appeal, merely raises points of facts and not law.

The preliminary point raised by the respondent clearly has merit and must be upheld in relation to ground of appeal number 2.

3rd ground of appeal; that is; The honourable arbitrator erred at law in assuming that the appellant bore the onus of proving the non-entitlement of the respondent to the benefits and allowances claimed.

Again, a ground of appeal cannot be based on an untruth. The respondent gave evidence to prove his case and produced affidavits by witnesses. He also produced memorandums and payslips to prove his case which the arbitrator considered. The arbitrator only required the appellant to rebut the respondent’s evidence which he failed to do. While placing the onus on a wrong party would indeed raise a point of law, it is not what transpired in casu. There is no legitimate point of law and the preliminary point is upheld.

Ground of appeal number 4, that is;

The honourable arbitrator grossly misdirected herself on the facts and evidence which misdirection amounts to an error of law in its defiance of logic and common sense by finding that;

a)	The respondent sealed the SSB contract when there was no evidence of exactly how this is done, save for the bald statements in witnesses’ affidavits which affidavit had been challenged.

The court’s finding is that appellant failed to establish the gross unreasonableness. The evidence was there to prove on a balance of probabilities that the respondent sealed the SSB contract.

b)	allowances allegedly due to the respondent arose by implication from custom when no evidence of such was presented.

This court finds that there has not been demonstrated gross unreasonableness on the part of the arbitrator who placed reliance on the payslips produced, the affidavits and memorandum. The evidence was there before the arbitrator and in the record.

c)	The allowances concerned were contractual entitlements

It is accepted by this court that there was no written contract but the fact that there is no written contract does not in itself mean that the allowances were not contractual. The record showed that the allowance were paid and then stopped. When the appellant paid and the respondent accepted, there was an offer and acceptance and therefore there was a contract between the parties though not reduced to writing. There is nothing brought before the court to prove that the arbitrator was grossly unreasonable.

d)	Medical aid was a benefit payable to the respondent

The record shows that the arbitrator indicated that this allowance was not disputed. This has not been challenged. The appellant has failed to establish gross unreasonableness.

e)	The respondent was entitled to purchase the motor- vehicle as a contractual benefit and the conditions that would have entitled him to purchase the vehicle had he been entitled had not been fulfilled.

Nothing has been placed before this court to demonstrate gross unreasonableness.  The arbitrator made a finding that is supported by the evidence placed before him.  The appellant could have produced its own evidence to rebut the respondent’s evidence but nothing to the contrary was placed before the arbitrator and neither was authority placed before me to illustrate gross unreasonableness.

The Grounds of appeal merely raises factual issues. No gross unreasonableness has been demonstrated before me to enable me to find that the arbitrator grossly erred to such an extent as to say the misdirection is on a point of law.

In the case of Hama v NRZ (1) ZLR 664 (S) it was stated that;

“The general rule of law, as regards irrationality, is that an appellate court will not interfer with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regards to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic………that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”.

There is not demonstrated before me such gross unreasonableness. As a result the court cannot accept that there is any point of law.

The respondent’s preliminary point has merit and as such must be upheld. The grounds of appeal raise no point of law and the	 following order is made;

Order

The appeal is dismissed.

Messrs, Gunje & Chasakara 	-	Respondent’s legal practitioners