Invest Zimbabwe (Pvt) Ltd v Pearl Mubvumbi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/671/2016
HARARE, 19 SEPTEMBER 2016 &
CASE NO LC/H/176/2016
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/671/2016

HARARE, 19 SEPTEMBER 2016 &			         CASE NO LC/H/176/2016

4 NOVEMBER 2016

INVEST ZIMBABWE (PVT) LTD					      APPELLANT

PEARL MUBVUMBI						     RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellant	Mr T Chirango (Director)

For the Respondent     Mr S Dhliwayo (Trade Unionist)

MUSARIRI J:

On 8th March 2016 at Harare, Arbitrator V Mateko issued an arbitration award. She ordered the appellant to pay the respondent an amount of $500-00 as outstanding salary. The appellant then appealed to this court against the award. The respondent opposed the appeal. The grounds of appeal were rather prolix as the appellant acted pro se. However the first four grounds of appeal basically cover the appellant’s case. These are they:

“1.	The Honourable Arbitrator misdirected herself in law in dealing with issues that were not placed before her for determination and in the process ignored the terms of reference for arbitration. In other words the arbitrator erred in law in erroneously dealing with the issue of unfair dismissal when the terms of reference simply required to address the issue of non-payment of salary and notice pay.

2.	Consequent to ground of appeal 1 above, the Arbitrator wrongly awarded compensation for alleges unfair dismissal in circumstances where the issue of unfair dismissal was not a term of reference.

3.	Further and in any event, the Arbitrator grossly misdirected herself in law in finding that the Respondent was unfairly dismissed in circumstances where the Appellant simply exercised its common law and contractual right to terminate a contract of employment on notice.

4.	In all, the Arbitrator’s decision is so grossly unreasonable that no reasonable person who had applied his mind to the questions to be decided could have arrived at such a conclusion.”

The Arbitrator’s conclusion read as follows:

“In light of the above, I come to the conclusion that the claimant was unfairly dismissed because no disciplinary hearing was conducted. The respondent was supposed to buy the claimant out of contract if he did not want the hustle of carrying out the disciplinary procedures. The claimant’s claim of three months’ salary for compensation is dismissed on lack of justification as contract of employment was one month.

In light of the above I order that Invest Zimbabwe pay Pearl Mubvumbi – one month salary - $500-00.”

The employment contract is filed of record. Indeed it was a fixed term contract for one (1) month. The respondent was entitled to an amount of $500-00” as sustenance allowance for the full month under this appointment. However the respondent worked from 3rd November 2014 to 19th November 2014 that is a period of nineteen (19) days. Clause 5 of the employment contract gave either party a right to terminate the employment contract on 24 hours’ notice. The appellant gave notice of termination by letter dated 18th November 2014. Thus it complied with the termination clause. In these circumstances the Arbitrator had no basis to find that the termination was unlawful. The contract does not permit him to read between the lines and deal with the allegations of incompetence as he did. The main issue was whether the respondent was paid for her services.

The appellant avers they initially promised to pay a pro-rata amount of $300-00 to cover the period worked. However they realised they had miscalculated as the pro-rata amount ought to be half of the contract amount that is $250-00. They paid the respondent that amount but she refused to sign an acknowledgment of receipt of payment. The respondent denied that she was paid anything. The onus thus fell upon the appellant to prove payment. Pressed on this point the appellant reluctantly conceded they did not have proof of payment. Thus the respondent was entitled to payment for her services. She worked for more than half a month. I consider that she was entitled to the $300-00 initially offered by the appellant. That is the amount the arbitrator ought to have awarded.

Wherefore it is ordered that:

The appeal be and is hereby allowed;

The arbitration award issued by Arbitrator J V Mateko dated 8th March 2016 is set aside; and

The appellant shall pay the respondent an amount of US$300-00 as pro-rata allowance for the period of employment.

G Musariri

J U D G E