Felix Hatinahama Gada v Rukweza Primary School SDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/07/2014
HARARE, 07 & 28 FEBRUARY 2014
CASE NO. LC/MC/07/2014
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/07/2014

HARARE, 07 & 28 FEBRUARY 2014	    		  CASE NO. LC/MC/61A/13

In the matter between:-

FELIX HATINAHAMA GADA						Appellant

And

RUKWEZA PRIMARY SCHOOL SDC					Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	In person

For Respondent		-	In default

MUCHAWA J:

This is an appeal against an arbitral award wherein the appellant was alleging unfair dismissal, nonpayment of wages and underpayment of wages by respondent.  The arbitrator dismissed the case on the basis that it had prescribed.

The brief facts are that appellant was employed as a teacher by respondent from January 2010 to November 2012.  The employment contract was however not reduced to writing.  He was initially paid a salary of US$80.00 per month in 2010 with the promise of backpay when verification of the prescribed salary was done.  In 2011 the salary was reviewed to US$100.00 per month then US$120.00 per month from January to March 2012 and finally US$160.00 per month from April to September 2012.  In October 2012 he was paid $30.00 when he was discharged on the 27th October 2012.  This, appellant alleges, followed a dispute regarding how the administration handled a complaint about how his grade 7 class had been treated just before a public examination.

Appellant has filed lengthy grounds of appeal which I summarise below:

The Arbitrator misdirected herself by failing to interpret section 94 (2) (b) when she held the matter had prescribed.

The Arbitrator failed to address the issue of unfair dismissal in terms of the law in terms of Section 12B (2) (a) and (b) as I was discharged without Respondent complying with the applicable Code of Conduct for the National Employment Council for Welfare and Educational institutions registered in terms of section 101 of the Labour Act.

I was subjected to underpayment of wages and benefits and am raising a claim in terms of section 6 (1) (a) of the Labour as read with section 8 (d) (e) (i) and (ii) of the same Act.

Despite service of the Notice of appeal and a Notice of Response being sent to respondent, respondent did not file any notice of response save for simply stamping the notice on the 22nd August 2013 without any particulars of the response.

On the date of hearing respondent did not appear despite service of the notice of set down.  Appellant applied for the matter to be determined on the merits.  This is what I proceed to do below.

Prescription

It is clear from appellant’s submissions that he was dismissed from employment on the 27th of October 2012.  The matter was referred to a labour officer for conciliation on the 31st December 2012, just two months afterwards.  The issues to be considered were unfair dismissal, nonpayment of wages and underpayment of wages.

Section 94 of the Labour Act provides as follows:

(1)(1) Subject to subsection (2), no labour officer shall entertain any 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.

(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.

It boggles the mind how the arbitrator concluded that in casu the issue of the unfair dismissal had prescribed when the cause of action arose only two months before being referred to a labour officer.  It is also unclear how the other issues of the nonpayment of wages and underpayment were treated in respect to prescription.  It is unclear whether they were considered as having been continuing at the time.

I therefore find that the arbitrator misdirected herself by failing to interpret section 94 (2) (a) (b) of the Labour Act and in holding that the matter had prescribed.  This ground of appeal therefore succeeds.  The matter had not prescribed.

This therefore means that appellant was not heard on the merits of the matter.  I proceed to deal with the merits below:

Unfair Dismissal

I find that appellant who was employed in January 2010 to November 2012 without a written contract had become an employee on a contract without limit of time in terms of section 12 (3) of the Labour Act.

Appellant was employed by the respondent SDC and such a contract entitles him to the entitlements under the National Employment Council for Welfare and Educational institutions.

My perusal of the record shows that there are no disciplinary hearing minutes.  All that is available is a letter signed by the Chairperson and the Vice Chairperson dated 27 October 2012 and date stamped 01 November 2012 which reads as the letter of termination and is titled “Misconduct and Termination of Service – Gada Felix”

Section 12B (2) of the Labour Act [Chapter 28:01] states that

“An employee is unfairly dismissed –

if, subject to subsection (3) the employer fails to show that he dismissed the employee 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)”

In casu there is no evidence of appellant having been dismissed in terms of any employment code.  There is no evidence of him being given an opportunity to be heard.  I therefore find that his dismissal was a nullity as he was unfairly dismissed.  (see Brake and Clutch (Pvt) Ltd v Nyama SC 42/01 and Securitas (Pvt) Ltd v Musora SC/15/00.  In particular, it is respondent’s obligation to have an adequate record of proceedings as stated in Ncube v Ntombi HB/49/2005.

Appellant claims that in October 2012 he was only paid $30.00 instead of the prescribed $241.52 plus allowances totaling $110.00 and is therefore owed $321.52 in unpaid wages as respondent violated section 6 (1)(1) of the Labour Act by paying less than the legally stipulated wage.

Appellant then proceeds to detail the underpaid wages and allowances from December 2010 to September 2012 which total $7 162.52.

The record has two letters that are important in this respect which appellant confirmed authoring.  One letter is dated September 2010 wherein appellant who was earning $80.00 then is applying for a salary increment.  This was then subsequently increased in January 2011 and thereafter as detailed above.

The second letter dated 11 November 2010 in respect to salary review is very important.  Appellant writes:

“Even though I am very much pleased with the salary grade offered but, I am quite worried with the living standard of the community which provides this school with the funds.  It is very difficult for this community to raise such as amount now, each month, as the current situation stands.

Even though you may be pleased with my service but, I would rather suggest that you drop this amount from $228 to say about $120 – per month.  Surely, it will be quite difficult for the community to raise that amount per month”

In the face of appellant’s clearly stated position in which he accepted less favourable conditions, there is no basis on which appellant is claiming the amounts he is claiming.  His explanation regarding the circumstances in which the letter was written are not satisfactory.  In my opinion it does not matter whether the headmaster had received the offered salary figures from the Ministry of Labour or the NEC.  Appellant clearly refused to accept the offered amount of $228.00 per month and suggested $120,00 instead.

In the circumstances, the claim for underpayments as claimed, has no merit.

The claim for the unpaid salary in October 2012 is similarly without merit especially in the light of the $340 shortfall paid in Rusape.

Consequently I order as follows:

“The appeal being with merit succeeds.  The arbitrator’s award is set aside and substituted as follows:

Respondent reinstates appellant to his original position without loss of salary and benefits with effect from the date of dismissal i.e. 1st November 2012.

In the event that reinstatement is no longer possible, Respondent pays Appellant damages, the quantum of which is to be agreed between the parties, upon failure of which either party approaches  this Court for quantification