Jacob Charowa v Christian Care & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/1/2020
HARARE, 02 JUNE 2018
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE        JUDGEMENT NO. LC/H/1/2020

HARARE, 02 JUNE 2018                             	        CASE NO. LC/H/LRA/81/18

AND 10 JANUARY 2020

In the matter between:-

JACOB CHAROWA						 Applicant

And

CHRISTIAN CARE						 1st Respondent

And

FLORAH NDLOVU                                                   2nd Respondent

Before Honourable B.T CHIVIZHE, J

For Applicant:		In person

For 1st Respondent: 	Mr I. Chiwara & Mr V.U. Vhudzijena (Legal Practitioners)

For 2nd Respondent: 	Mr A.T. Nhidza

CHIVIZHE, J:

This is an application for confirmation of a ruling made by the Applicant in his capacity as Designated Agent for the National Employment Council for Welfare and Educational Institutions on (hereafter referred to as NEC) (date). The application is premised on Section 93(5a) (b) of the Labour Act [Cap 28:01] as amended by the Labour Amendment Act No. 5 of 2015. The Application is opposed by 1st Respondent and partially supported by the 2nd Respondent.

The material background facts to the matter are as follows. The 2nd Respondent was employed by the 1st Respondent. She was initially engaged on the basis of a permanent contract which contract was later to be converted to a fixed term contract. There were thereafter fixed term contracts which ran from August 1987 to December 2014. After the termination of the last such contract the 2nd Respondent referred a complaint to the NEC on 10th September 2016. She was claiming for a long-service award, service pay and her pension contributions. The Applicant after failing to conciliate the dispute issued a certificate of No settlement on 17 March 2017. The matter was then to be disposed of on the basis of Section 93 (5) (c) of the Labour Act [Cap 28:01].

Before the Applicant the 2nd Respondent submitted that she had been employed by 2st Respondent for a continuous 27 years. She was therefore claiming a long-service award as she had served for more than 25years. She was therefore claiming $632,45 x 5 months = $3162.30. She was further claiming service pay calculated as $632.45 x 9 years = $5692.05. It was noted that she was not paid long-service of one month’s salary for each year served (from 2005 to 2014) in terms of company policy. 2nd Respondent was also claiming $1500 being damages arising out of 1st Respondent’s failure to remit all pension contributions to the pension scheme which had resulted in 2nd Respondent receiving less payments than anticipated. The total cumulative amount claimed was $23 824.05.

The 1st Respondent in counter submitted that the 2nd Respondent was raising claims for benefits arising from the same set of facts and the same cause of action already addressed by Arbitrator Honorable Chamisa in his award. The award having been challenged on appeal before the Labour Court that appeal was yet to be decided at the material time. The 1st Respondent was therefore raising a plea of lis alibi pendes. The 1st Respondent relied on the case of CABS vs Mangondo HH 333-15 to support its position on the plea. The 1st Respondent also raised as an alternative argument that the claim raised by the 2nd Respondent was res judicata as the matter of the final terminal benefits due to 2nd Respondent had already been decided. The 2nd Respondent therefore moved for the dismissal of the 2nd Respondent claim on the basis of lack of merit.

The Applicant in his analysis and findings reached a conclusion that considering that there was an appeal and application for rescission pending before the Labour Court under case references as noted; further that no application for an interim order having been made before the Labour Court; Section 92E (2) of the Act was clear that an appeal against an arbitrator award did not have the effect of suspending the award appealed against. He consequently found that the award was extant as it had not been set aside by a competent court of Law. He therefore proceeded to determine the matter before him which matter was based on the Chamisa award.

In regards the claim for long-service award he found that it was 1st Respondent’s policy to award its employees for long service. The Chamisa award having determined that 2nd Respondent had served for 27 continuous years the Applicant found that the 2nd Respondent was entitled to the amount claimed of $3162.30 (i.e. $632.45 x 5 months = $3162.30)

The Applicant further found that on the basis of finding in the Chamisa award that 2nd Respondent had served a continuous 27 years; the 1st Respondent policy being to pay service pay at one month’s salary for each year served; the 2nd Respondent having been paid for the period 1987 to 2005; the 2nd Respondent was entitled to the balance for the years of 2006 up to her termination in 2014 i.e. a period of 9 years multiplied by $632.45 the total amount awarded $5692.05.

With regards the last claim of pension-gratuity the Chamisa award had determined that 2nd Respondent was entitled to gratuity of $ 4 610.02 less gratuity already paid by December 2014. The NEC Collective Bargaining Agreement Statutory Instrument 102 of 2014 in clause 20(3) provided that employees under a pension scheme were not entitled to gratuity unless the benefits were less favourable than the gratuity provided in terms of statutory instrument. The 2nd Respondent had confirmed receiving $5203.00 paid by Fidelity Pension Scheme. The Applicant finding was that it was not his duty as a Designated Agent to determine on the fairness of the pension benefits received. The Chamisa award having awarded gratuity the issue was settled and could not be revisited. The 2nd Respondent ought to have raised her concerns in regards to the pension scheme at the material time when she was paid out. The Applicant accordingly dismissed the 2nd Respondent claim for damages arising out of the pension contributions not paid to 2nd Respondent.

The Applicant then handed down a ruling which in its operative part reads as follows;

“RULING

Having considered the facts and law it is hereby determined as follows;

The claimant is entitled to $3162.30 being long-service award.

The claimant is entitled to $5692.05 being service pay.

The claim for pension contributions is hereby dismissed

Respondent is ordered to pay the total of $8854.35 within 30 days of receipt of ruling”

The 1st Respondent having failed to comply with the ruling the Applicant referred the present application for confirmation as provided in Section 93(5)(c) of the Act. He also prays for an order for costs in the amount of $90 to be paid by 1st Respondent.

THE APPLICATION

The application is opposed by 1st Respondent. In the Founding Affidavit of its Acting Finance Minister 1st Respondent avers that the Applicant erred and misdirected himself by deciding issues that had already been determined by Honourable Chamisa in his award dated 29th June 2015 where he had found that 2nd Respondent had worked continuously for 27 years. The 1st Respondent had appealed this decision to the Labour Court and Kudya J in her judgement (annexure to the papers) addressed the issues. On this basis the 1st Respondent position was that Applicant should not have proceeded to determine the matter which was pending then at the Labour Court at the material time.

The 1st Respondent makes a second alternative averment that even if the matter was properly heard by the Applicant, the Applicant reached a wrong decision which was not supported by evidence. This was so in regards to his finding that 1st Respondent had a policy to award employees for service pay. The Applicant finding having been hinged on 2nd Respondent mere say so and in the absent of evidence that finding was said to be wrong.

The 1st Respondent further submits that the decision by Honourable Chamisa of a long service token was held to be flawed by Kudya J. Both partied had in any event before the Applicant made submissions that after 2005 the 2nd Respondent had been engaged in a series of fixed term contracts. She had already been paid long service award for the period up to 2005. After 2005 she was only entitled gratuity this issue had also been addressed and determined by Kudya J. The 1st Respondent position is that it was not proper therefore for Applicant to have proceeded to decide on matters that were pending at the time before the Labour Court. On this basis 1st Respondent prays for dismissal of application with costs.

The 2nd Respondent is not opposed to the confirmation of the ruling. The 2nd Respondent however submits that the ruling ought to be confirmed with a variation. The 2nd Respondent contention is that the 1st Respondent having failed to remit all her pension contributions the Applicant ought to have upheld that point. The Applicant clearly erred on that point alone. Applicant ought to have found 1st Respondent liable to pay 2nd Respondent damages for the failure to remit pension contributions to the pension’s fund. The 2nd Respondent in her heads relied on Section 2A (3) as read in Section 13 of Act to bolster her argument. On the basis of section 13 she therefore was entitled to receive her terminal benefits within a reasonable period; a failure by the employer to pay such entitlement amounts to an unfair labour practice. On this basis the 2nd Respondent contention is Applicant misdirected himself in finding that he had no jurisdiction to determine the pension matter. The 2nd Respondent’s further submission was that the Labour Court has the power based on Section 89(2)(c)(ii) of the Act to direct the 1st Respondent to pay 2nd Respondent compensation for any loss or prejudice suffered as a result of the unfair labour practice.

The 2nd Respondent prayer therefore is for confirmation of the ruling subject to a variation that 1st Respondent be directed to pay damages for the non-remission of pension contributions. The 2nd Respondent also prays in the alternative that the court can direct that the parties to engage each other within 14 days and agree on the quantum of the said damages that are payable in restitution for 1st Respondent failure to remit pension contributions. In the event of failure to reach settlement either party may approach the Labour Court with evidence for determination of the quantum of damages payable.

ANALYSIS/FINDINGS

The pertinent issue before this court therefore is whether the issues placed before the Applicant were in fact covered by the plea of lis alibi pendens the material time. The 1st Respondent position is the issues being the same issues were indeed covered. The Applicant and 2nd Respondent do not agree. The 2nd Respondent submits that the issues were materially different. The Labour Court had only addressed the two issues of gratuity and wage arrears.

A perusal of the record of proceedings before the Labour Court in Labour Court/MC/Appellant/48/16 shows that the two issues on appeal  as highlighted in Kudya, J Judgement were as follows;

“1.	The arbitrator erred at law in finding that the Respondent was entitled to gratuity in addition to pension directly paid despite contrary provisions in the applicable Collective Bargaining Agreement.

2.	Arbitrator erred at law to find that Respondent was underpaid in salaries and allowances despite contrary provision in the applicable Statutory Instrument”.

The record also shows that in her judgement Kudya J addressed the issue of gratuity vis-a-vis pension as provided under the applicable scheme. She found that the Arbitrator had failed to correctly interpret the provisions of the relevant Collective Bargaining Agreement. She therefore upheld 1st Respondent argument based on gratuity. She also upheld the argument based on wages. She therefore handed down an order vacating the Arbitral award.

It is clear on the basis of submissions and facts in the record that Applicant clearly erred in proceeding to determine issues that were otherwise pending before the Labour Court at the time and for which the court has since handed down its decision. The issues pending before him having been placed before a Superior Court the Applicant should not have proceeded to determine the claims. The Applicant’s reason for so proceeding is that the award had not been suspended was clearly flawed. The Labour Act in any event clearly prohibits the convening of multiple proceedings in Section 124 for the same reason. It is clear that this matter was indeed lis alibi pendens in so far as the issues of service pay, gratuity were concerned.

The Applicant also in arriving at his ruling made critical errors. Firstly, he held that the 1st Respondent’s policy was to award service pay. When he arrived at that conclusion there had been no evidence led by 2nd Respondent to establish that fact. He clearly committed an error of law. It is after all an established principle of law that it is an error of law to make a finding based on no evidence. The court was aptly referred by 1st Respondent to Ruturi vs Heritage Group (Pvt) Ltd 1999 (2) ZLR 374(5)

The Applicant also committed an error of law when he found that long service award was available to the 2nd Respondent where both the parties had agreed that 2nd Respondent had been engaged on fixed term contracts for the period from 2005 to 2014 and only gratuity was available to employees on fixed term contracts. The Applicant thus made a finding that was clearly contrary to the evidence placed before him.

The third error is that the Applicant dismissed the claim of outstanding pension contributions which were not remitted to Fidelity Life Assurance. The Applicant found that

“claimant confirmed receiving $5203 paid by Fidelity Life pension scheme. It is not the duty of the Designate Agents to determine on fairness of the quantum of pension benefits received. The issue of gratuity was awarded and it is now a settled case and cannot be revisited at this stage’’

An examination of the claims referred to Applicant clearly indicates that 2nd Respondent raised the issue of an unfair labour practise perpetrated by 1st Respondent in regards her pension contribution which were not remitted to Fidelity Life. The Applicant clearly abrogated on his duties by failing to address this issue. He ought to have determined that issue as placed before him.

On this basis it is the court’s finding that the draft ruling clearly cannot be confirmed. It has to be set aside on the basis that the Applicant clearly erred and misdirected himself in proceeding to determine at the material time issues that were pending before another forum being the Labour Court. He ought to have dismissed the claim on that basis. The Applicant however ought to have proceeded to address the one issue of non-remittal of pensions to Fidelity Life. The 2nd Respondent having raised the issue of non-remittal of pension benefits, to the extent that pension is a statutory benefit which becomes payable upon termination of employment the 2nd Respondent was essentially raising an unfair labour practice. The Applicant clearly would have jurisdiction to address the issue. It is therefore necessary and in the interest of justice and finality of litigation for the issue to be determined before the Applicant.  For that reason therefore the matter is going to be remitted to Applicant for him to determine only that aspect of the claims made before him.

It is accordingly ordered as follows;

The application for conformation of ruling of Jacob Charowa dated 15.06.2017 is declined.

The draft ruling is consequently set aside.

The matter is however remitted to the Applicant for him to determine the claim of non-remittal of pensions to Fidelity Life.

The matter shall consequently be set down before Applicant and determined within 60 days of the date of this order.

There is no order as to costs.

Coghlan, Welsh and Guest, 1st respondent’s legal practitioners