Galia Investments (Pvt) Ltd v Fungai Chapfukidza & 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/674/2016
HARARE, 26 MAY 2016 & CASE NO LC/H/1124/2015
4 NOVEMBER 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/674/2016

HARARE, 26 MAY 2016 &					       CASE NO LC/H/1124/2015

4 NOVEMBER 2016

In the matter between

GALIA INVESTMENTS (PVT) LTD					APPELLANT

Versus

FUNGAI CHAPFUKIDZA & 4 OTHERS					RESPONDENTS

Before the Honourable Chidziva J

For the Appellant	Z W Makwanya (Legal Practitioner)

For the Respondents	J Denhere (Trade Unionist)

CHIDZIVA J:

This is an appeal against the decision of Honourable Arbitrator Mr Munyaradzi Dangarembizi that was handed down on 30 November 2015. The award is couched as follows:

“Wherefore, after carefully analysing the facts and the law, I make the following award:

The respondent is hereby ordered to pay to the claimants a total amount of $13 455-00, being $3 942-00 due to F Chapfukedza, $3 900-00 due to T Musariri, $1 050-00 due to T Bhero, $1 050-00 due to P Chandahwa and $3 471-00 due to A Chimutewe.

The amount of $13 455-00 to be paid to the claimants on or before 15 December 2015.”

When the parties appeared before the arbitrator the respondents submitted that they were unfairly dismissed by the applicant on 25 May 2012 without a hearing. It was further submitted that they were being underpaid and were not being paid transport and housing allowances. They prayed for an order for a total payment of $10 305-00 being underpayment of wages, non-payment of housing and transport allowance. They also prayed for reinstatement to their previous grades without loss of salary and benefits to date and that if reinstatement was no longer tenable that they be paid damages without loss of employment.

The appellants submitted that the respondents were on one month fixed employment contracts, open to renewal when work was available. The contracts expired at the end of May 2012. The appellant submitted that the respondents were paid up to the time of expiration of the contracts and in addition were given a one month’s extra payment in lieu of notice, notwithstanding that it was not necessary to give notice where a contract ends by effluxion of time. The respondents also accepted their terminal benefits in full and final settlement.

The terms of reference that were brought before the arbitrator were:

To determine whether or not the employees were unfairly dismissed.

To determine whether or not the employees were underpaid wages during the period in question.

To determine whether or not the employees were not paid housing and transport allowances.

To determine the remedy.

It is the award by the arbitrator which led to the appeal before this court. The grounds of appeal are as follows:

The arbitrator erred as a matter of law in grossly disregarding the provisions of section 92 (b) of the Labour Act [Chapter 28:01] wherein no evidence was provided by the respondents before the arbitrator to show that the respondents were members of the Zimbabwe Food Beverages and Allied Workers Union. The arbitrator chose to simply ignore the admission which was made by the third respondent T Bhero that the respondents never instructed the trade union in question for them as they never made any membership subscriptions to it and that they had no complaint in the manner in which their fixed term contracts were not renewable on effluxion of time.

The arbitrator erred in holding that the respondents were unfairly dismissed notwithstanding that they were on monthly fixed contracts which contracts were not renewed upon their expiry due to the appellant’s reduced workload and no-one was recruited in their stead. In, fact, none of the respondents attended the hearing before the arbitrator to dispute the position.

The arbitrator grossly erred on the facts as to amount to a misdirection on the law when he reached a conclusion that the respondents were underpaid in salaries and housing allowances when in fact the record showed that they were being paid well above the minimum NEC rates.

The arbitrator erred as a matter of law in holding that the respondents were entitled to the gross amount of $13 455-00 which amount was plucked from the air and was not due in the circumstances.

The appellant prayed that the arbitral award be set aside and that it should be replaced with the following order:

“That respondents’ employment by the appellant lawfully came to an end upon expiry of their one month fixed contracts.

That there is no basis for the gross claim of US$13 455-00 or any other sum.

That each party bears its own costs.”

The respondents in response submitted that:

The arbitrator’s findings analysis regarding Zimbabwe Food Beverages and Allied Workers Union’s mandate to represent the respondents is baseless in view of the fact that membership to unions is open to all employees.

The appellant failed to prove signed expired contracts of employment.

Evidence to prove money owed was adduced before the arbitrator.

The respondent therefore applied for dismissal of the appeal.

The issues to be decided are whether:

The respondents were unfairly dismissed.

The appellant owed the respondents anything in terms of unpaid wages and allowances.

J Denhere had the authority to represent the respondents.

Whether respondents were unfairly dismissed

The appellants submitted that the respondents were on monthly fixed contracts which contracts were not renewed upon their expiry due to the appellant’s reduced workload and no-one was recruited in their stead. It was further submitted that the respondents were paid their terminal benefits which they had accepted in full and final settlement. There is no evidence before this court which shows that the respondents were paid their terminal benefits in full and final settlement. The appellant also failed to produce signed contracts which showed that they were on one month fixed term contracts. The production of an unsigned contract as evidence is not proof that the respondents were on fixed term one month contracts. In the absence of the evidence stated above and the absence of a disciplinary hearing this court finds that the respondents were unfairly dismissed. Section 12 B (2) of the Labour Act states that an employee is deemed to be unfairly dismissed:

“2 (a)	if subject to subsection 3 the employer fails to show that he dismissed the employee in terms of an employment Code.”

Whether the Respondents were underpaid

The respondents submitted a schedule showing the underpayments of wages. The appellant has not produced any evidence against this allegation. This court therefore finds that the respondents were underpaid. However as for damages in lieu of reinstatement no evidence was led by the parties to prove the quantum of damages they were supposed to receive. Therefore evidence is supposed to be led to prove the quantity of damages that the respondents are entitled to.

Whether Mr J Denhere had the authority to represent the Respondents

The appellant has argued that Mr Denhere of ZIBAWU did not have the authority to represent the respondents and thus the papers that had been filed on behalf of the respondents were not properly before the Tribunal. The respondents submitted that this claim was baseless because membership to unions is open to all employees. The respondents have submitted that ZIBAWU has (3) three types of membership namely:

Membership by stop order form;

Non-member; and

A member who is less than three months in contributing

The respondents have submitted that they complied with the union Constitution by paying deposit fees for representation in the dispute. Section 29 (4)(d) of the Labour Act states that:

“Subject to this Act, a registered trade union or federation of such unions shall be entitled to make representations to a determining authority or the Labour Court.”

ZBFWU therefore has authority to represent employees. After paying deposit fees for representation the respondents gave Mr J Denhere the mandate to represent them. In that case therefore the representations that were made by J Denhere to the tribunal are valid.

To that end therefore this court finds that the appeal lacks merit and orders as follows:

The appeal be and is hereby dismissed.

The matter be and is hereby referred to the arbitrator for quantification of damages in lieu of reinstatement.

The appellant shall pay costs.

Chinawa Law Chambers, appellant’s legal practitioners