FBM Haulage (Pvt) Ltd v Morgen Karimadondo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/395/16
HELD AT HARARE 17 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/395/16

HELD AT HARARE 17 MAY 2016				CASE NO LC/H/759/15

& 23 JUNE 2016

In the matter between:

FBM HAULAGE (PVT) LTD				Appellant

And

MORGEN KARIMADONDO				Respondent

Before The Honourable E Muchawa, Judge

For Appellant			Ms M Munyawarara (Human Resources Manager)

For Respondent		Mr W Gumbira (Trade Unionist)

MUCHAWA, J:

This is an appeal against an arbitral award.

The respondent was employed by the appellant since 2004 as a general hand/day guard until May 2014 when he resigned.  On 5 January 2015, the respondent lodged a complaint of underpayment of wages, non-payment of overtime and for public holdings worked with the National Employment Council for the Transport Operating Industry.  Failing settlement, the dispute was referred to arbitration.

The arbitrator found that the respondent was being paid wages below the stipulated minimum wages, that he had not been paid overtime and for public holidays worked.  She found that the claims arising between 2011 and 2012 had prescribed and awarded the following;

Shortfall for wages for the period July 2012 to June 2013 - $2074.00.

Overtime for 2076 hours amounting to   $2677.00

Overtime for public holidays $469.00

Total $5 220.00

Dissatisfied, the appellant has lodged this appeal and raises the following issues

for my determination;

That the arbitrator erred at law in failing to consider that the respondent’s earnings were much more above those stipulated at NEC and he therefore did not suffer prejudice.

That the arbitrator erred in accepting the respondent’s blanket claim for overtime and public holidays worked without proof of such having been worked and contrary to evidence adduced.

The arbitrator erred in failing to consider the principle at law that he who alleges has the burden of proof.

I deal with each of these issues below.

Ground 1 – Underpayment of wages

It is the appellant’s case that the arbitrator erred in awarding the sum of $2074.00 as wages shortfall.

It is argued that the respondent was in fact being overpaid as his gross salary was always above the National Employment Council (NEC) stipulated rate in terms of the Collective Bargaining Agreement: Transport Operating Industry, Statutory Instrument 67 of 2012.

The respondent referred the court to the payslips on record pages 18 to 19 to illustrate that he was underpaid in terms of the basic wage even though his gross salary was higher than the prescribed figure due to the appellant paying accommodation and transport allowances higher than the NEC prescribed ones.  It was argued that the NEC minimums do not preclude an employer from offering better conditions.

The respondent relied on a job description in respect to him (exhibit 2), to argue that he should be graded as a watchman/guard, in computing the shortfalls.

A perusal of the award does not show the grade which the arbitrator used.  She simply recorded under the respondent’s (appellant in casu) submissions, that it was not disputed that the then claimant (respondent in casu) was employed in the capacity of general hand.

As the prescribed minimum wages are different for a general hand and guard, the arbitrator should have made a clear finding on this.

Statutory Instrument 67 of 2012, the Collective Bargaining Agreement defines a guard/watchman as an employee whose duties are to protect premises and any other movable or immovable property of any description.

A general hand/worker, on the other hand, means an employee engaged in general labouring duties.

The job description shows that the respondent carried out cleaning duties inside and outside the depot for trucks, trailers and small cars.  He also carried security checks at the depot, recorded company items in the OB book, dispensed fuel to trucks, recorded this and dips whilst maintaining fuel records.

Clearly his work was not purely that of a guard as defined but was a variety of tasks requiring little skill which could be learned quickly without considerable training.  I find therefore that he was a general hand.

I find too that the arbitrator erred in just plucking the figure of $2074.00 and awarding it without showing how she had arrived at this figure.  She was however correct in finding that the important figure to consider is the basic salary which should be compared to the NEC minimum prescribed rate.  The fact that the appellant opted to pay more favourable allowances does not exonerate it from paying the minimum basic salary.

Below, I demonstrate what would therefore be owing as salary shortfalls.

Total shortfall = $1 638.24

I find therefore that for the period July 2012 to June 2014 which the arbitrator found to be appropriate for the awarding of salary shortfalls, the amount owed is $1638.24 only.

Grounds 2 and 3 overtime, public holidays and Burden of proof

The appellant disputes that the respondent worked any overtime or during public holidays at all.  It was submitted that the appellant is a small company which is closed during public holidays which benefits from closed circuit television and a tracking system on the vehicles therefore it did not need respondent to work overtime.  The trucks in the business were said not to move from 6 pm to 6 am and that in rare cases they would get services from Command Security.  It was averred that the respondent worked from 7.30 am to 4.30 am and no time sheets or posting on the pastel system used was done as he worked normal hours.

The respondent persisted in arguing that he worked 12 hours per pay for 5 days per week amounting to 60 hours per week instead of 48 hours.

There was however no proof availed of who had approved such overtime.  The respondent alleges he got a verbal instruction to start work at 6 am and finish off at 6 pm.

I wish to take the approach in First Mutual Life Assurance v V Muzivi 2007 (1) ZLR 325 (S) where in dealing with the question of onus of proof CHEDA JA (as he then was had this to say;

“The suggestion that the employer failed or refused to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue.  It was the respondent who had the onus to prove his claims.”

In similar manner, it was erroneous for the arbitrator to shift the onus of proof to the appellant on the basis of the provisions of S 125 (1) of the Labour Act.  It was the respondent who had the onus to prove his claims.  It was the respondent who had the onus to prove his claims.  The issue of the appellant’s non-compliance with section 125 (1) of the Labour Act is an entirely different issue.

In any event, where such records are not produced, section 125 (5) provides that it shall be presumed for the purposes of this Act that every employee employed by him during the relevant period was engaged for not less than the ordinary hours of work applicable to that employee in terms of the law.  The presumption does not work to incorporate overtime or public holidays worked as claimed by the respondent.

Consequently I find that the arbitrator erred in awarding overtime and also for public holidays.

Accordingly the appeal partly succeeds.

The arbitral award is set aside and substituted as follows,

“1.	The claimant is awarded salary shortfalls in the amount of $1638.24.

2.	The claims for overtime and public holiday worked are dismissed for lack of evidence.”