Ottilia Makota v Food World Supermarket

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/270/16
HELD AT HARARE ON 1ST FEBRUARY, 2016
CASE NO. LC/H/37/15
JUDGMENT NO. LC/H/270/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/270/16

HELD AT HARARE ON 1ST FEBRUARY, 2016     CASE NO. LC/H/37/15

AND 13TH MAY, 2016

In the matter between:-

OTTILIA MAKOTA							    Appellant

And

FOOD WORLD SUPERMARKET					    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr Reason Masomera

(ZFTU Deputy Secretary for Legal Affairs)

For Respondent	:	Ms Tuso Kudzai Praise

(Human Resources Manager)

MHURI J.

Appellant’s claim before the arbitrator was for:-

$

Non-payment of maternity leave 		=	 1 119,00

Damages for unfair dismissal			=	 4 476,00

Refund for unlawful deductions			=	    160,63

Overtime						=	13 191,00

Terminal benefits 					=	 1 320,42

Total							=	20 268.04

After considering the evidence and submissions by both parties, the Arbitrator awarded as follows:

$

Overtime					=	1 118,00

Gratuity					=	   202,42

Cash-in lieu of leave			=	1 119,00

Wages					=	1 199,00

Refund for unlawful deductions	=	   160,63

Total					=	3 799,05

It is noted that on the 21st January, 2015 the parties signed a Deed of Settlement in respect of the amount as awarded by the Arbitrator.

It is also noted that on the 13th January, 2015, Appellant had filed this appeal  against  part  of  the  award,  vis,  against  the  award  of  overtime only ($1 118,00).

Respondent takes issue with Appellant’s appeal arguing that in view of the Deed of Settlement, Appellant was estopped from making any further claims – that the matter had become res-judicata

I am not persuaded by Respondent’s argument on this issue.  After the award, Appellant filed her appeal against a portion of the award vis overtime only.

It was only after the Appellant had registered the award in the Magistrate Court that parties entered into a settlement to pay the sums of money as awarded by the Arbitrator.  The appeal meanwhile was still pending.  Appellant was not making a further claim as Respondent would like this Court to believe.

In the Deed of Settlement the parties are silent on whether the settlement concludes and cancels all pending matters between the parties.

To that end therefore the principle of res judicata does not apply.

Appellant’s sole ground of appeal is to the effect that the Arbitrator misdirected herself by failing to award overtime as claimed by Appellant especially considering that Respondent had not disputed the claim.  She failed to appreciate the provisions of Section 125 (1) and (5) of the Labour Act [Chapter 28:01].

The said section obliges the employer to maintain and produce records of the hours worked in the event of a dispute.  She ought to have given Appellant the benefit of doubt.

It is a trite position of the law that he who alleges bears the burden of proof.  In casu, Appellant alleges that she is owed cash for the overtime she worked for a period covering,

$

March 2009 – June 2010			2 705,35

July 2010 – July, 2012				9 030,60

August 2012 – March, 2014			1 455,86

It is common cause and the Arbitrator found as proved, that Appellant only produced evidence that substantiated only three (3) months of her claim.  For the rest of the period she did not produce any evidence, resulting in the Arbitrator awarding her only for the 3 months.

I do not find fault with the Arbitrator’s award.  I find support for this view in the case of

FIRST MUTUAL LIFE ASSURANCE

vs

JACKSON MUZIVI SC 9/07

In the above case, CHEDA J.A. (as he then was) reiterated the position that the onus is on the alleger to prove his claim.  He had this to say at page 6 of the cyclostyled judgment,

“It is the respondent who had the onus to prove his claims.”

At page 5 of the same judgment it was pointed out,

“The suggestion that the employer failed or refused to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue.’

This comment reinforces my view that it does not matter that Respondent did not challenge the claim.  For instance in cases where the Respondent does not appear and the application for quantification proceeds in default of Respondent, the Court cannot just grant the claim on the applicant’s mere so.  The claim must be proved.  Appellant’s reliance on Section 125 of the Act does not assist her either, as that provision does not take away an Applicant’s onus to prove his/her claim.  Failure to keep records was not the issue before the Arbitrator.  If Respondent contravened Section 125 that would be a different issue altogether and cannot be used to aid appellant in proving her claim.

In granting Appellant $1 118,00, which was proved, I find that the Arbitrator did not err at all.  Her award is beyond reproach and I confirm it.

Accordingly it is ordered that the appeal be and is hereby dismissed.