Mande AND Company (Pvt) LTD V Phanuel Sebastian Pfumayaramba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/805/2014
HARARE, 13 NOVEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/805/2014

HARARE, 13 NOVEMBER 2014		           	                   CASE NO. LC/H/604/14

AND 05 DECEMBER 2014

In the matter between:-

MANDE AND COMPANY (PVT) LTD				Appellant

And

PHANUEL SEBASTIAN PFUMAYARAMBA			Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr. G. Makings (Legal Practitioner)

For Respondent		Mr. M. C. Mukome (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award in favour of the Respondent.  Respondent has been in the employ of the Appellant since 1 February 1996 as a Group Administration Manager.  Between 2005 and 2008 Appellant embarked on a retrenchment exercise for its employees stationed at around 30 outlets countrywide.  Respondent requested to be considered for retrenchment but the request was not granted as the parties could not agree on the package to be paid.  Appellant offered to reduce Respondent’s working hours.  From April 2009 to date, Respondent is on a weekly wage.  Respondent approached Appellant for a review of his working conditions to no avail.  He then referred the dispute for conciliation and the conciliation proceedings resulted in a certificate of No Settlement.  The matter was then referred to arbitration.  The terms of reference were,

Whether or not the claim has prescribed.

Whether or not the Claimant is entitled to a salary increment.

If so, whether or not the Claimant is entitled to a salary of US$2 000 (Two thousand United States Dollars) per month.

Whether or not the Claimant is entitled to allowances.

If so, the appropriate remedy thereof.

Costs.

The arbitrator ruled that the claims had not prescribed.  He dismissed the claims for salary increment, replacement of motor vehicle, vehicle maintenance costs, annual bonus and pension.  He ordered Appellant to pay the following allowances backdated to February 2009;

Clothing allowance calculated at 34% of the current salary;

Entertainment allowance calculated at 4% of current salary;

Fuel allowance of 80 litres per month at the rate of US$1.50 per litre;

Medical aid contributions and sports club membership fees whose quantum is to be agreed between the parties.

He also ordered Appellant to pay US$574.00 (five hundred and Seventy Four United States Dollars) to Respondent being refund for insurance and licensing charges.

Appellant was aggrieved and noted an appeal on 17 July 2014.  The grounds of appeal can be summarized as follows;

The honourable Arbitrator misdirected himself in law in finding that the matter is not prescribed.

The honourable Arbitrator misdirected himself in law by making a finding that the allowances being claimed by the Respondent for clothing, entertainment, fuel and medical aid should be allowed in the amounts claimed when no evidence was led as to how the amounts claimed were arrived at.

The honourable Arbitrator misdirected himself in law when he made contradictory findings in relation to the licensing and insurance of the vehicle but still awarded $574.

Respondent filed grounds of opposition on 13 August 2014.  He stated that the Arbitrator was correct in holding that the dispute had not prescribed.  He submitted that Appellant had not disputed that he was entitled to the allowances claimed.  Respondent also submitted that he was entitled to a refund of the insurance and licensing charges of the motor vehicle.

Considering the first ground of appeal, the arbitrator stated that the Claimant’s entitlement to allowances is continuing even at the time of entering the award.  Appellant argues that conditions of employment were altered by mutual agreement resulting in the allowances being incorporated into a US$ salary.  The mutual agreement is disputed.  It is trite that he who alleges must prove.  See Zimasco (Pvt) Ltd v Jameson Chizema SC-38-07.  No proof of the mutual agreement was produced before the arbitrator.  The finding by the arbitrator that the matter fell within the ambit of Section 94 (2) of the Labour Act cannot be faulted.

The second ground of appeal faults the arbitrator for allowing allowances in amounts claimed when no evidence was led as to how the amounts claimed were arrived at.  The arbitrator stated that the clothing and entertainment allowances should be calculated using the current salary of US$248 per month.  According to him Respondent is entitled to the allowances in terms of the formula stated in the contract.  In the statement of claim on pages 27-28 of the record, Respondent stated that in terms of the contract of employment he was entitled to

a clothing allowance which was 34% of his salary per annum,

entertainment allowance which was 4% of his salary per month.

Appellant did not dispute these percentages.  It is trite that what is not disputed is taken as admitted.  The arbitrator was therefore correct in awarding these percentages as allowances.  However the Appellant’s contention with respect to the fuel allowance seems to have merit.  Respondent did not claim that he was entitled to 80 litres per month in terms of the contract of employment.  He stated that;

“Usage of the motor vehicle went hand in hand with the expenses related thereto.  Applicant was entitled to both fuel and maintenance costs of the vehicle.  Applicant has been catering for these at his cost and is thus claiming the sum of US$6 912 being the cost of 80 litres of fuel per month for 54 months at $1.60 being the current market rate.”

(p28 of record paragraph d (iii))

In my view the above statement shows that there was no set figure for the fuel Respondent was entitled to per month.  In the absence of that Respondent had an onus of proving that he was entitled to 80 litres per month.  Alternatively Respondent should have proved that he used 80 litres per month and his claim would then have been for reimbursement of what he had expended on fuel.  I therefore find that the award of the fuel allowance cannot be supported.

In the statement of claim Respondent stated that in terms of the contract of employment his medical aid contributions were supposed to be made by the Appellant to CIMAS Medical Aid Society.  He claims to have paid the sum of $2 937 from his own pocket which should be refunded.  Appellant did not dispute this allegation.  As it is stated that it is in terms of the contract of employment, the Arbitrator cannot be faulted for awarding it in the absence of a dispute from the Appellant.  However as stated by the arbitrator, the quantum is to be agreed between the parties.  Respondent must produce the proof of payment for the refund to be made.

The arbitrator also awarded the club membership fees whose quantum is also to be agreed.  In my view Respondent must prove that he joined a club and paid subscriptions totaling the amount claimed.  Proof of payment of the subscription will entitle a refund of the same.  The arbitrator’s award on this aspect can also not be faulted.

Lastly the arbitrator awarded $574 as refund for insurance and licensing charges.  This is against a finding that Respondent did not furnish proof of quantum.  I agree with his statement that “the claimant has to prove the quantum following which the Respondent has to pay.”  In my view the award for this cost should have been concluded similarly to the medical aid contributions and the sports club membership.  The quantum is to be agreed between the parties as the Respondent must produce proof that he paid the insurance and licensing charges.  The arbitrator stated that he was awarding “refund” and therefore proof of payment must be tendered.

In the final analysis the appeal is partially successful.  There is a basis for interfering with the arbitral award.

Accordingly I order that

The third paragraph of the award be and is hereby altered by the deletion of item 3.3.

The fourth paragraph of the award be and is hereby altered to read

“Respondent be and is hereby ordered to refund payments made by the claimant for insurance and licensing charges whose quantum is to be agreed between the parties.”

The fifth paragraph of the award be and is hereby altered by the addition of item 5.5 fuel allowance.

The sixth paragraph of the award be and is hereby altered by adding paragraph 4 after paragraph 3.4.

Each party bears its own costs.

G. MAKINGS, Appellant’s legal practitioners

M.C. MUKOME, Respondent’s legal practitioners