John Madziya (Labour Officer) N.O v Lion Microfinance Limited & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/61/2022
HARARE, 23 FEBRUARY, 2022
CASE NO. LC/H/191/21
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/61/2022

HARARE, 23 FEBRUARY, 2022		               CASE NO. LC/H/191/21

AND 11 MARCH, 2022

In the matter between:

JOHN MADZIYA (LABOUR OFFICER) N.O				Applicant

Versus

LION MICROFINANCE LIMITED					1st Respondent

MUNEINAZVO CHITAKUNYE						2nd Respondent

Before The Honourable Kachambwa J;

For Applicant:					In Person

For 1st Respondent:					Ms R. T. Phiri (Legal Practitioners)

For 2nd Respondent:					In Person

KACHAMBWA J:

The Application

1. This is an application by a Labour officer. It is for the confirmation of the officer’s draft ruling. It is in terms of section 93 (5a) (a) and (b) of the Labour Act, Chapter 28:01 (hereafter the Act). The application is opposed by the first respondent and supported by the second respondent in favour of whom the draft ruling is.

The claims by the parties

2.	The second respondent was employed by the first respondent as a legal and compliance executive or the company secretary from September 2016 to May 2020. In August 2019 the first respondent initiated an exercise to avoid retrenchment. An agreement was entered into with the employees. The written notice for the exercise is dated 12th November 2019. It talks of the reduction only of salary to 50% and no other.

3.	The first respondent complained of underpayment of fuel, school fees allowance and monthly motor vehicle allowance for servicing of his car. He resigned in July 2020 and the first respondent did not pay him the salary for May 2020 either. The second respondent considered that all this was done to force him to resign and therefore his resignation was constructive dismissal. He further alleged that these non-payments were a unilateral alteration of his contract.

4.	First respondent denied the allegations, pointing out that infact he was merely following the measures on avoiding retrenchment as agreed by the parties. He further challenged the second respondent to prove his claims by evidence. He also argued that the second respondent had not exhausted local forum before approaching the Labour officer. On the constructive dismissal he argued that there was no evidence to it and the second respondent had actually ended the contract by his resignation.

The Ruling

5.	The applicant ruled that there was no constructive dismissal. The issues raised could be attended to internally first and externally later. On the payments the applicant ruled that these were not paid as evidenced by the attempt to deduct from them for failure to give notice of resignation and by the employer’s failure to show that indeed the employer paid. The applicant said that the requirement by section 125 of the Act to keep records of these payments is for the records to be produced in situations such as these. Failure to produce them shows that there was no payment. In other words once an employee had laid a foundation for a claim of non-payment the employer cannot simply sit back and insists on proof by the alleger. He should shoot down the allegation by not only saying he paid but by producing the evidence which evidence he is required to keep.

6.	The applicant ruled that the employer should therefore pay-

i)	fuel allowance at 200 litres per month from July 2018 – May 2020

ii)	school fees allowances from July 2019 to May 2020

iii)	salary for the month of May 2020, and

iv)	cash in lieu of leave days due.

Opposition to the confirmation

7.	The first respondent opposed the application for confirmation insisting that there was no evidence placed before the applicant to prove the claims. Secondly it was also claimed that the applicant had overlooked evidence of payment of the May 2020 salary. Thirdly, it was argued that the applicant misdirected himself by shifting the onus of proof to the first respondent whereas he who alleges must prove the allegation. First respondent asked that there be documents to support the claims. Further the damages must be proved and not left to conjecture. The anti-retrenchment measures were said to cover all the non-payments.

Support for the confirmation

8.	The second respondent supported the application for confirmation saying that it was well found. He also claimed payment for motor vehicle allowance saying that the applicant mentioned it but did not make a ruling on it. Indeed applicant mentioned it but curiously it is not there in the letter of complaint to the labour officer. It is not even in the letter of amendment of claim dated 5th November 2020. Resultantly the first respondent resisted the call to this court to add this claim.

QUANTUM

9.	The issue of quantum of “damages” is glossed over by the parties. The applicant did not put any quantum. The first respondent said that there was no evidence placed before the applicant to prove the quantum and the court was left to conjecture. The second respondent said that the present application is only to confirm liability. After that the matter must go back for quantification and evidence of quantity would be proved. I can safely say that indeed there is no quantity that was awarded. To that extent this is an abnormal application. It is akin to the awards that confirm unlawful dismissal but without awarding quantum of damages. The matter is sent back to the parties to agree failing which they come back for quantification. This is just an application to confirm liability. Quantification comes separately!. Normally that should not be the procedure. The claim should have been quantified.

ANALYSIS OF THE APPLICATION

10.	This is a rather unusual ruling in that it did not quantify what the second respondent should be paid. It only dealt with the right to be paid. That is also in line with the complaint. It would have been better and neater if the quantities were also calculated. As the draft ruling stands it is not capable of registration for execution. That is only possible after quantification. However it should be possible to confirm the ruling and send it back for quantification. That would be in line with equitable justice.

11.	The main argument in opposition of the application is that there was no proof of the claims. The first respondent said that the court was left to conjecture on the “damages” and that should not be the case.

“…the court does not have to embark on conjecture in assessing damages where there is no factual basis in evidence or, an inadequate factual basis, for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff which have failed to produce available evidence upon which an assessment of the loss could have been made” (Monument Art Co v Kenston Pharmacy (Pty) 1976 (2) SA at 118 D-F).

That is the law indeed. In the present case the level of damages will be proved in the quantification process. For the present, suffice it to say that the applicant’s ruling seems to be correct in that it is based on the agreement/letter for the avoidance of retrenchment. That letter talks of a 50% (fifty percent) reduction in salary only. Further the attempt by the first respondent to deduct monies for failure to give notice tends to support the ruling too. Having laid a foundation for his claim it was incumbent for the first respondent to show that indeed he had paid and not just allege that he had paid. In that respect it is not a shift of burden of proof. This dovetails well with the requirement that first respondent keeps records of salary and other payments as required in section 125 of the Act. The second respondent had listed the relevant periods when he said he had not been paid or had been underpaid. The keeper of records could show that that was not true. He should not just say that he paid.

12.	In view of the above reasoning the draft ruling would be confirmed and the matter sent back for quantification. This accords well with the dispensation of justice between parties rather than to knockdown one party on a technicality. Accordingly the ruling will be confirmed as amended as follows-

1.	The ruling by Labour officer John Madziya be and is hereby confirmed.

2.	The first respondent pay the second respondent the following items:-

2.1. fuel allowance from July 2018 to May 2020.

2.2. schools fees allowance from July 2018 to May 2020

2.3. outstanding salary for the month of May 2020; and

2.4. cash in lieu of leave days.

3.	The matter is remitted to the applicant for quantification of the dues and return for confirmation to this court.

4.	Costs shall be in the cause.