Mazarura Bus Service & Stores (Pvt) Ltd v Sumali Dinner

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/311/16
HELD AT HARARE 7 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			       JUDGMENT NO LC/H/311/16

HELD AT HARARE 7 MARCH 2016				      CASE NO LC/H/184/14

& 27 MAY 2016

In the matter between:

MAZARURA BUS SERVICE & STORES	 (PVT) LTD		Appellant

And

SUMALI DINNER						Respondent

Before The Honourable B S Chidziva, Judge

For Appellant			Mr B Furidzo (Legal Practitioner)

Respondent			In person

CHIDZIVA. J:

This is an appeal against the award that was handed down by honourable arbitrator R E Nhiwatiwa on 6 September 2015.  The arbitrator ordered the respondent Mazurura Store to pay Sumali Dinners a total sum of USD$16 425 being underpaid wages, cash in lieu of leave and overtime pay.

The brief facts of the matter are that the respondent was employed by Mazarura Store as a watchman from 8 February 2008 to June 2012.  He worked during holidays, in excess of regulated hours in the industry.

Respondent was not paid for overtime hours.  He eventually left employment due to unbearable acts by the appellant.  The labour officer referred the matter for arbitration on 30 August 2012 to determine the following issues

Amount of underpayment due to the respondent

Overtime hours due to complainant if any

Whether or not there was underpayment of cash in lieu of leave

Whether or not the complainant was unfairly dismissed.

The grounds of appeal before this court are that

The arbitrator erred at law by making a finding that the respondent was entitled to $9477.00 being amount for overtime when such claim was never proved on a balance of probabilities by the respondent.

Having found that the respondent was not constructively dismissed the honourable arbitrator erred in making a finding that the respondent was entitled to back pay from June 2012 to March 2013.

The arbitrator erred by awarding US$783.00 for leave days when on the facts the respondent was granted the leave days.

The arbitral award is defective in that it is against a non-existent entity.

The respondent in response told the court that

The appeal does not raise any point of law because the appellant failed to produce records to rebut the respondent’s claim for overtime.

Appellant did not produce any record as proof of payment of cash-in-lieu of leave pay

Mazarura Stores (Pvt) Ltd t/a Mazarura Bus Service (Pvt) Ltd are the same.

The appellant has raised the point that Mazarura Store is not an entity and this

cannot be sued.  Respondent has submitted that the Store and Bus Service are used interchangeably. The respondent further argued that labour matters should not be decided on technicalities as stated in the case of Dalny Mine v Musa Banda SC 39/09.

I will start by dealing with the question on whether the award is defective or not.  In the case of Gariya Safaris (Pvt) Ltd v Van Wok 1996 (2) ZLR 246 the court held that

“the proceedings and judgment following the issuing of summons were null and void because the proceedings had been brought against a non-existent defendant.”

In this case the appellant has stated that Mazarura Store is not a legal entity because

it does not end with (Pvt) Ltd or Limited.  In the case of Brown v Hicks (1902) 19 SC 314 states that

“A contract of employment is an agreement between two legal personae (parties) in terms of which one of the parties (the employee) undertakes to place his personal services at the disposal of the other party (the employer) for an indefinite period in return for a fixed or ascertainable wage and which entitles the employer to define the employee’s duties and usually to centre the manner in which the employee discharge them.”

The respondent has not adduced any evidence to show that

Mazarura Store

Mazarura Store (Pvt) Ltd

Mazarura Bus Service & Stores were one and the same thing and could be used interchangeably.

In the absence of this evidence therefore this court finds that the claim that was

brought before the arbitrator was defective.  It also follows that the award against Mazarura Stores is defective and cannot be enforced. The award is therefore null and void.

To that end therefore this court finds that the appeal succeeds.

It is therefore ordered that

1.	The appeal be and is hereby allowed.

2.	Each party shall bear own costs.

Kanokanga & Partners, appellant’s legal practitioners