Merchant Bank of Central Africa v F. Chibvongodze and 15 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/681/14
HELD IN HARARE, 22ND SEPTEMBER, 2014
CASE NO. LC/H/303/14
AND 9th JANUARY, 2015
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/681/14

HELD IN HARARE, 22ND SEPTEMBER, 2014             	            CASE NO. LC/H/303/14

AND 9th JANUARY, 2015

In the matter between

MERCHANT BANK OF CENTRAL AFRICA		Appellant

And

F. CHIBVONGODZE AND 15 OTHERS			Respondent

Before The Honourable E. Makamure:	Judge

For Appellant    :	Mr S.V. Hwacha (Legal Practitioner)

For Respondents:	Ms Z. Chirombe (Legal Practitioner)

MAKAMURE J.,

This is an appeal against the decision of an arbitrator sitting at Harare. The sixteen respondents are former employees of the appellant. They were retrenched by the appellant after being placed on some form of leave “garden leave” which placed them “on call” – i.e. they did not go to work but had to be prepared to go to work whenever called upon to do so by the appellant. Consequently they were unable to meaningfully make private arrangements. As a result of this they aver that they are still owed their leave days. Should that be the case they should be paid for those outstanding leave days. The garden leave is different from vacation leave where they could plan their private lives without the apprehension of being called to report for work during the duration of the leave. The appellant’s position is that at some point they were informed that their garden leave had been converted to vacation leave. This means that they cannot claim payment for the leave days in question because they used them.

The respondents’ grief lies in the averment that they were not notified that this garden leave had been converted into vacation leave. As such therefore when retrenchment was considered, the days so converted were not paid for. They insist that they are still owed in those leave days.

The Arbitrator who dealt with the matter found that the respondents were not notified that they were on vacation leave. The Learned Arbitrator found that as a result of such failure to notify the respondents, the respondents could not make their own private plans. Further the employer withheld the respondents’ dues for the leave days in question and thereby committed an unfair labour practice.   In the result the Learned Arbitrator ordered the appellant employer to pay the respondents cash in lieu of the leave days in question.

There are letters dated 4th October 2011 addressed to each of the respondents. Each of the letters shows that the employees were placed on vacation leave to ensure that the outstanding leave days were used up. This is disputed by the respondents. One Mr Chisi gave evidence before the Arbitrator in support of the letters which are referred to above.  However the letters on record were authored by one Gisela Kombe. As a general rule, the author of a document must produce it and satisfy the tribunal of its authenticity [Hoffman and Zeffert: South African Law of Evidence, 3rd Edition page 308] Thus the author of the letters ought to have explained why, if these employees were properly informed, they insist that they were not so informed. That piece of evidence ought to be heard by the Arbitrator who made the determination.

In view of the above the matter is hereby remitted to the same Arbitrator to consider the letters authored by Gisela Kombe and hear the evidence of the same Gisela Kombe regarding the respondents’ position that they were not informed that they were placed on vacation leave.

The matter should be concluded within thirty (30) days from the date of this order. Accordingly it is so ordered.

Dube, Manikai & Hwacha – Appellant’s legal practitioners

Zimbabwe Banks & Allied Workers Union – Respondents’representatives