Nhema V.S. (N.O.) v Sun Gold Syndicate & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/199/23
HARARE, 15 MARCH, 2023
CASE NO. LC/H/1130/22
28 MARCH 2023 AND 10 JULY 2023
NHEMA V.S. (N.O.)
APPLICANT
SUN GOLD SYNDICATE
1ST RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 15 MARCH, 2023
28 MARCH 2023 AND 10 JULY 2023

NHEMA V.S. (N.O.)
APPLICANT

SUN GOLD SYNDICATE
1st RESPONDENT

GODFREY MADONDO
2nd RESPONDENT

Before the Honourable Kudya J;

For the Applicant
In person

For the 1st Respondent
Sengwayo T. (Legal Practitioner)

For the 2nd Respondent
In person

KUDYA J:

This is an application for the confirmation of a ruling in the matter between Godfrey Madondo and Sun Gold Syndicate. Sun Gold is in support of the confirmation while Madondo is opposed to same. The background to the matter is that Madondo was engaged by Sun Gold as a plant manager from 1st January, 2021. After serving Sun Gold for about a year Sun Gold purportedly terminated his service on notice. Madondo was aggrieved by the termination and took his matter up with the Labour Officer. Before the Labour Officer he claimed that he had been unlawfully dismissed from employment. He also claimed that his salary had been unilaterally reduced by Sun Gold. He alleged further that his 5 year employment contract had been breached by Sun Gold. Madondo also claimed that he had not been paid his terminal benefits. He finally claimed reimbursement for the courses he had undertaken when he was in Sun Gold’s employ.

After listening to both parties positions the Labour Officer concluded that none of Madondo’s claims was merited. In the result he dismissed all the claims. It is that ruling which he now seeks to have this court confirm. Confirmation the powers are settled. See *Isoquant v Darikwa N.O.* CCZ 6/20. The court is enjoined to find out if the ruling meets both the substantive and procedural tenets of the law. To conclude on the substantial and procedural tenets in the matter at hand each of the claims is discussed below.

**Unfair dismissal**

It is settled that termination on notice is permissible so long as it follows the elaboration in Section 12(4) (a) to (d) of the Labour Amendment Act (See *Greatermans v Minister of Public Service* CCZ 2/18). In the matter at hand Sun Gold purports that it terminated Madondo’s service on notice. It however does not show clearly the extent of the notice period that applied to Madondo. A reading of Madondo’s contract of employment filed of record only states the starting date and is silent on the end date suggesting that it was a contract with no limit of time. The Labour Officer tried in his oral address to the court to impress upon the court the fact that Sun Gold had told him that Madondo was not required to work daily so he concluded that he was a casual worker. Secondly the record does not support that. It is evident from the contract filed of record that the contract was without limit of time. It was thus irregular for the Labour Officer to read into the contract what was not there. It is clear therefore that whilst Sun Gold had the right to terminate on notice it did not do so in line with the modification set out in 12(4)(a) to (d) of the Labour Amendment Act. Sun Gold argued that the law had no retrospective effect but as earlier indicated *Greatermans supra* put it beyond doubt that termination on notice was permissible but only within the confines of Section 12(4) (a) to (d). For the reason that Madondo’s termination did not comply with the above stated provision it was therefore unlawful. The court is therefore satisfied that the ruling is bad at law on the 1st claim and it cannot be confirmed.

**Salary reduction**

It is settled that the employer can not reduce an employee’s salary without the employee’s input or agreement. In the case at hand Madondo says he was being paid $350 which was reduced to $200 without his right input or agreement. The Labour Officer states in his ruling that Sun Gold indicated that the salary was $200 only and had $150 top up which was effected by one of the shareholders to the extent that Sun Gold did not deem obliged to pay that extra $150. A reading of the complaint form states that Madondo’s salary was $200 per month. Further to that Madondo had on 15th November, 2022 requested for his salary payment records but the record seems silent on that. The practical difficulty posed by the absence of the payment records is that it was not easily ascertainable as to what the correct salary was without such records. The Labour Officer in his ruling lightly concluded that the claim had not been proved yet there were such glaring gaps in the evidence which should have helped him to conclude on the issue of underpayment. It is also noteworthy that the contract of employment was on its face silent on remuneration thus leaving the issue to be Madondo’s word against Sun Gold’s word. It is settled that the employer being the custodian of employment records is duty bound to avail such when a dispute arises. See Labour Act Section 125. In the case at hand it was imperative for Sun Gold to have availed the payment records for the fair resolution of the issue of underpayment. The conclusion was thus reached in dearth of evidence. To that extent it cannot be concluded that the underpayment aspect was ruled on correctly. The confirmation is also refused on this title.

**Breach of 5 year contract**

A reading of the contract on file does not show anywhere that it was a 5 year contract between the parties. The court stated under the heading of unlawful termination that the contract only spoke about its commencement ended there. The Labour Officer can therefore not be faulted from finding that the breach was not proven. The ruling to that extent should be confirmed.

**Terminal benefits**

It is settled that upon termination of employment on notice the employer should comply with the provisions of section 12(4) (a) to (d) of the Labour Amendment Act. On account of the fact that Sun Gold did not follow the provisions of the Labour Amendment Act it can therefore not be said that the Labour Officer was correct to rule that Sun Gold had paid Madondo his terminal benefits. The ruling can therefore not be confirmed under this heading.

**Reimbursement for courses done**

Under this head the Labour Officer disallowed the claim on the basis that Madondo had not favoured them with evidence that Sun Gold had sanctioned the pursuit of such cases. The court is in agreement with the Labour Officer that Madondo was duty bound to prove that Sun Gold had sanctioned the attendance of such courses. His mere say so could not suffice. It is settled that he who alleges must prove See ZUPCO v Parkhouse Services (Pvt) Ltd SC-13-17. The Labour Officer can therefore not be faulted for ruling as he did that the claim was not proved.

In the ultimate it is clearly that the ruling was correct in some regards and incorrect in others. It is settled that the Labour Court can confirm the ruling with or without amendment (see Triangle Pvt Ltd v Mutasa N.O. SC-77-21 and Air Zimbabwe (Private) Ltd v J.V. Mateko(NO) and Others SC-180-2. In the result the confirmation application partially succeeds.

**IT IS ORDERED THAT**

Application for the confirmation of a ruling in the matter between Madondo and Sun Gold being partially merited it be and is hereby allowed with amendments. Ruling on the matter between Madondo and Sun Gold being partially merited be and is hereby confirmed with amendments. The claim for unfair dismissal be and hereby succeeds. The claim for unilateral reduction of salary be and is hereby remitted to the same Labour Officer to determine the same with evidence from the employer of the employment records which were utilised over the period in issue. The claim for breach of contract of employment is dismissed for lack of evidence. The claim for payment of terminal benefits succeeds. Sun Gold is obliged to pay Madondo his terminal benefits properly under the law if it decides to terminate his services on notice. Claim for reimbursement of courses done being without evidential backing be and hereby fails. Sun Gold is to reinstate Madondo to his original position without loss of salary or benefits. If reinstatement is not tenable Sun Gold is to pay Madondo damages in place of reinstatement in a quantum to be agreed upon by the parties or to be set by the court.

Each party bears own costs.

*Mwonzora and Associates- 1st respondent’s Legal Practitioners*
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