Flyhigh Enterprises v Nesbert Chatikobo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/155/16
HELD AT HARARE ON 2nd NOVEMBER, 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/155/16

HELD AT HARARE ON 2nd NOVEMBER, 2015        CASE NO. LC/H/948/14

AND 18TH MARCH, 2016

In the matter between:-

FLYHIGH ENTERPRISES						    Appellant

And

NESBERT CHATIKOBO							    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr E. Donzvambeva (Legal Practitioner)

For Respondent	:	Mr F. Zimanyiwa (Organising Secretary ZFTU)

MHURI J.

This is an appeal against an arbitral award.  The grounds of appeal can be summarized as follows:-

The Arbitrator misdirected himself on the law by shifting the burden of proof from Respondent to Appellant.

The Arbitrator erred on a question of law by basing his decision on the parties written submissions without holding an oral hearing.

The Arbitrator erred in finding that Respondent be paid a gratuity.

The Arbitrator misinterpreted Section 125 of the Labour Act.  It does not oblige employers to prove cases for employees.

It is a well-established principle that he who asserts bears the burden of proof.  In casu, two of the Arbitrator’s terms of reference were to determine whether or not:-

Respondent was owed moneys in terminal benefits

Respondent was underpaid;

……………….

……………….

In order to determine these terms, the Arbitrator was enjoined to decide what Respondent was employed as by Appellant.

It was Respondent’s submission in his claim that he was employed as a block man.  On the other hand, it was Appellant’s submission in opposition that Respondent was employed as a butchery assistant and not block man.

It was therefore incumbent upon Respondent to prove that he was a block man.  In deciding this term, the Arbitrator resorted to Section 125 of the Labour Act [Chapter 28:01] which obliges an employer to keep records.  The Arbitrator opined that:-

“what the Respondent ought to have done was just to pull out the documents, in the form of salary payslips or contracts of employment to prove claimant’s job title…….

This was not done I therefore find favour with claimant’s submissions pertaining to his job title and what he was earning or supposed to earn.”

On the basis of the above, the Arbitrator ruled that claimant was employed as a block man and that he was underpaid.

It is clear from the Arbitrator’s observation that the burden of proof was shifted from Respondent to the Appellant.  I find that this was a misdirection on the part of the Arbitrator.  It was Respondent’s obligation to adduce evidence to prove his claim that he was a block man.  The same payslips Arbitrator wanted Appellant to produce should have been produced by Respondent as it is expected that each party retains their own copies.

I find support from the case of

FIRST MUTUAL LIFE vs JACKSON MUZIVI SC 9/07

.

CHEDA JA (as he then was) had this to say at page 5 of the cyclostyled judgment

“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 is the respondent who had the onus to prove his claim.

If he was dismissed when he was in a certain grade, it was for him to tell the court what salary scale applied to him at the time of his dismissal.

He could not just claim that he was in a certain grade whose salary scale he did not know.

This would suggest that he did not know what he was claiming.”

Having found that the Arbitrator erred in shifting the burden of proof on to Appellant, it therefore follows that Respondent did not prove his claim, the Arbitrator’s finding that Respondent was a block man, that he was entitled to wages as a block man and was under paid, cannot be allowed to stand.

The claim for cash in lieu of leave also suffers the same fate.   Except for his mere say so, which was challenged, Respondent did not prove this claim.  The amount having been based on a Block man’s salary cannot be allowed to stand either.

As regards, gratuity, it is not in dispute that Respondent had worked for Appellant for 17 years.  The applicable Collective Bargaining Agreement governing the parties is the Commercial Sectors Collective Bargaining Agreement Statutory Instrument 45 of 1993.

Section 31 of the Collective Bargaining Agreement provides for gratuity.  It reads:-

“Section 31 Gratuities on termination of employment

Subject to the provisions of subsection (4), an employee who has completed ten or more years of continuous service shall, on the termination of such service, irrespective of the circumstances such termination be paid a gratuity of not less than the amount derived by multiplying the appropriate percentage of his current monthly wage by the number of completed years of continuous service, as set out in the Third Schedule.

If an employee ……dies …….

Notwithstanding the provisions of subsection (1) and (2), if an employee is a member of a pension fund which provides for the employee, or his dependants, to receive an amount in excess of the employee’s own contributions together with interest then the gratuity payable in terms of this subsection shall be reduced by such excess.

In the event of the benefit due being a pension or deferred pension, then the value of the pension, or deferred pension, shall be compared with the gratuity payable plus the refund of the employee’s own contributions with interest and if the pension or deferred pension, is less than the gratuity and refund of contributions then the difference shall be paid in cash by the employer

…………………………………”

It is very clear from subsection (1) that gratuity is payable on the formula stipulated therein.  However, the implementation of subsection (1) is subject to subsection (3).  The amount to be paid as gratuity is to be calculated on the basis of the formula provided in subsection (3).

The Arbitrator found that the pension scheme referred to in Section 31 above, is not NSSA but other schemes offered by various insurance companies.  The subsection (3) does not make that distinction.  Respondent in his response to the appeal submitted that NSSA runs a Social Security Fund which is not a pension.

Fund is defined in the Pension and Provident Funds Act [Chapter 24:09] as

“any scheme or arrangement the principal object of which is to provide benefits for persons who are or have been members of the scheme or arrangement upon their retirement on account of age or ill-health, whether or not such scheme or arrangement –

……………………………………..

……………………………………..

and includes any fund established by or in terms of any enactment.”

(Emphasis added)

Pension Fund is defined as –

“any fund the principal object of which is to provide for the payment of a pension to a person who is or has been a member of the fund on his retirement.”

According to the undisputed submission Respondent was contributing to NSSA.  That being the case, subsection (3) of Section 31 will therefore come into play.  Respondent is entitled to his gratuity but subject to the calculations provided in the formula stipulated in subsection (3).  I do not understand subsection (3) to mean that where one is a contributor to NSSA this automatically disentitles him/her from getting gratuity.

The Arbitrator was therefore correct in holding that the fact that claimant was on NSSA Scheme does not stop the Respondent from paying gratuity when an employee leaves employment.

Respondent is therefore entitled to his gratuity.

As regards Appellant’s 2nd ground, it is trite that an Arbitrator has the same powers as the Labour Court.

Section 98 (9) of the Labour Act provides –

“In hearing and determining any dispute an Arbitrator shall have the same powers as the Labour Court.”

Section 89 (2)(a)(i) empowers the Labour Court to determine a matter on the papers filed of record.  The Court has an option to conduct a hearing or decide the matter without holding a hearing.  These powers extend to an Arbitrator.  In casu, the Arbitrator decided to determine the matter on the parties written submissions which were placed before him.  This procedure was correct in my view.  There is therefore no basis to faulter the Arbitrator.  I also note that this was a ground for review as opposed to an appeal ground.  This ground of appeal cannot be allowed.

Save for the second and third grounds of appeal, the appeal succeeds in respect of grounds 1 and 4.

Accordingly it is ordered that the appeal be and is hereby allowed in respect of grounds 1 and 4 and is dismissed in respect of grounds 2 and 3.

Each party is to bear its own costs.

Wintertons – Appellant’s legal practitioners

ZFTU – Respondent’s representatives