Maxwell Sabilika N.O v Charles Munyukwi & PSI Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/759/2016
HARARE, 13 OCTOBER 2016 &
CASE NO LC/H/LRA/205/2016
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/759/2016

HARARE, 13 OCTOBER 2016 &			      CASE NO LC/H/LRA/205/2016

2 DECEMBER 2016

In the matter between

MAXWELL SABILIKA N.O					APPLICANT

versus

CHARLES MUNYUKWI						1ST RESPONDENT

And

P S I ZIMBABWE							2ND RESPONDENT

Before the Honourable Kudya J

The Applicant in Person

For the 1st Respondent      H Tsuro (Legal Practitioner)

For the 2nd Respondent      H Muromba (Legal Practitioner)

KUDYA J:

This is an application for the confirmation of a ruling which was made by a labour officer in a matter pitting the first respondent employee and the second respondent employer.

The law is clear in section 5 of the Labour Amendment Act that once a labour officer has made a ruling in a dispute of right brought before him by the parties he shall within a reasonable time apply to the Labour Court to have his ruling confirmed. This is what the labour officer who is the applicant in the case at hand seeks to achieve.

Before delving into detail about the confirmation prayer, it is important to note that, the parties addressed the court at the onset about their statuses on the matter that is the applicant and the respondents respectively. It emerged from the submissions made by the parties that indeed the employee had not been formally joined yet he had a substantial interest in the matter.

Following submissions by the parties it was agreed by consent that the employee be formally joined as the first respondent on the matter. The court consequently ordered by consent that the employee be formally joined as the first respondent on the matter. Further to that the citations which had already cited him before the formal joinder were to be treated as if he had been properly joined from the onset of the application.

Turning now to the application at stake it is worth noting that whilst the labour officer (the applicant) prayed for the confirmation of the ruling. The second respondent (employer) supported it but the first respondent (employee) vehemently opposed its confirmation.

The brief facts of the matter which gave rise to these confirmation proceedings are that the employee approached the labour officer arguing that he had been unfairly dismissed by the employer and that the employer had engaged in unfair labour practices of not paying him money for overtime he worked for the employer. He to that extent tendered what he called Trek easy documents which contained information about the tracking system on how he had conducted his duties. The labour officer was not convinced that the employee was entitled to any overtime which he claimed since his evidence did not confirm such overtime. Consequently the applicant ruled that the employee had failed to prove his claim. He thus ordered that the claim by the employee be dismissed and that instead the employer be allowed to pay him the $2005-00 which it had tendered as settlement for its indebtedness to him.

The applicant maintained that his ruling was good at law and for that reason he prayed that it be confirmed without amendment and with costs.

On the other hand the employee was adamant that the ruling was bad at law and should therefore be set aside. He argued that after he had tendered his documentary evidence at the Easy Track systemic he expected the labour officer to pose questions to him seeking to clarify exactly the relevance of those documents. He therefore argued that the order was to that extent improper and should be set aside.

The employer prayed that the ruling be confirmed as prayed for.

A reading of the record of what happened before the labour officer in particular the track easy record showed that indeed some documents were placed before the labour officer but that is only as far as these documents went. One cannot with sufficient clarity say what entitlement the employee had and over what period etc.

The employer correctly submitted that the duty prove one’s case rested on the employee. Since there is no clear evidence of how the employee contended that he was owed what he claimed, this court found itself at large not to refuse to confirm the order. It is clear that like on an appeal some serious misdirection has to be shown to justify upsetting of the trier of fact’s findings especially on factual issues. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC).

It is clear that no good basis has been laid for the court to refuse to confirm the ruling. It is accordingly confirmed with costs.

IT IS ORDERED THAT

The labour officer ruling of 1 September 2016 in the case between M Sabilika and Population Services International being good at law it be and is hereby confirmed with costs.

Madotsa & Partners, 1st respondent’s legal practitioners

Kantor & Immerman, 2nd respondent’s legal practitioners