Macro Construction (Pvt) Ltd v Dadirai Chokuona & 57 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/299/14
HELD AT HARARE 22ND FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/299/14

HELD AT HARARE 22ND  FEBRUARY 2014 		CASE NO LC/H/05/14

& 23RD MAY 2014

MACRO CONSTRUCTION (PVT) LTD			Applicant

DADIRAI CHOKUONA & 57 OTHERS			Respondents

Before The Honourable G Musariri, Judge

For Applicant		Mr A.T. Muza, Attorney

For Respondents		Mr K Masasire, Attorney

MUSARIRI, G:

On 29 November 2013 the Honourable W Mufambeni made an arbitration award.  In terms thereof he ordered Applicant to pay Respondents various amounts adding up to $81 740.00 in respect of arrear wages.  On 6 January 2014 Applicant appealed to this Court against the award.  Respondent opposed the appeal.  Then Applicant filed the present application for stay of execution.

Applicant’s Ground of Appeal are two-fold thus,

“1.	The Arbitrator erred grossly in law by awarding the Respondents the sum of US$81 740.00 an issue which was not part of his terms of reference.  The Arbitrator therefore overstepped his mandate because in terms of reference, he was meant to determine only the date of payment of wage arrears and not to determine the quantum of the sums due to the Claimants, which he did.

2.	The Arbitrator erred grossly in law when he found that the Appellant was liable to pay the total sum of US$81 740.00 to the Respondents yet no evidence was led by the

Respondents to prove their claim against Appellant.  In the circumstances, the award is based on unsubstantiated claims by the Respondents.”

The 1st ground raises a point of procedure.  Whether or not the Arbitrator exceeded the terms of reference is a matter of procedure.  It does not deal with the merits of the parties dispute.  Procedural irregularities are dealt with in review proceedings.  This Court now has powers of review since the promulgation of section 89 (di) of the Labour Act [Chapter 28:01].  Thus Applicant was misguided in raising a ground of review in an appeal.

The 2nd ground  avers that there was no evidentiary basis for the award.  The arbitration award recites the Respondents’ (then Claimants) claim.  They averred that they were owed “arrears in unpaid wages for the period from October 2012 to September 2013.”  The Applicant’s (then Respondent) position is captured as follows,

“Respondent’s submissions

That Respondent acknowledges owing Claimants wage arrears.

That Respondent seeks clarity as to how figures were arrived at showing composition with exact periods in which the same refers to...”

In other words Applicant admitted owing Respondent wage arrears.  It required a breakdown of the amounts over presumably monthly periods.  On  the other hand Respondents clearly stated that the period over which the arrears accrued ranged from October 2013 to September 2012.  In view of Applicant’s admission, the evidentiary burden, as opposed to the legal onus, shifted to it to prove payment/s made, if any, during the period in question.  The employer is obliged to keep written records of payment of wages.  All it need have done was produce its records to prove payment.  It did not do so.

When the parties appeared before me, I adjourned the matter for several days to give Applicant an opportunity to produce their records.  They failed to do so.  That simply confirmed the obvious, which is that they cannot disprove Respondents’ claims.  There being little prospect of success of Applicant’s appeal, I consider that its application for stay of execution is still-born.

Wherefore it ordered,

That the application for stay of execution is hereby dismissed; and

That each party shall bear its own costs.

G. MUSARIRI

J U D G E