Out of Africa (Pvt) Ltd v Mike Mpokosa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/296/16
HARARE, 16 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/296/2016
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IN THE LABOUR COURT OF ZIMBABWE	                  JUDGMENT NO. LC/H/296/16

HARARE, 16 MARCH 2016					      CASE NO. LC/H/817/15

AND 13 MAY 2016

In the matter between:-

OUT OF AFRICA (PVT) LTD 					Appellant

And

MIKE MPOKOSA							Respondent

Before The Honourable E. Muchawa, Judge

For Appellant	Mr Mukwindidza (Legal Practitioner)

Respondent	In person

MUCHAWA, J:

This is an appeal against an arbitral award.

The respondent was employed as a cook by appellant from January 2005 to 30 January 2015, when he retired.

A dispute arose relating to the terminal benefits payable to the respondent and he lodged a complaint with the Ministry of Labour on the 20th of May 2015.  When the dispute remained unresolved, the matter was referred to arbitration.

The terms of reference before the arbitrator were;

“To determine whether or not Mike was paid:

his leave days,

public holidays,

allowances, and

being underpaid

The arbitrator awarded the following to the respondent;

Transport allowance				-	$       60.00

Housing allowance				-	$       94.00

Cash in lieu of leave				-	$     697.00

Public holidays worked and not paid		-	$  3 100.00

Overtime						-	$18 528.46

Total award					-	$22 447.00”

The appellant is disgruntled and has brought this appeal in which the following issues are raised,

That the award in respect of overtime was outside the terms of reference and is therefore a misdirection.

Even if the award of overtime was properly before the arbitrator, there was a misdirection as the award was made without adequate and proper evidence of the respondent having worked as claimed.  Further the award is so outrageous in its defiance of logic such that no other person would arrive at such conclusion, it being alleged that the respondent for every single day in February 2013 only slept for 4.5 hours only.

The award for public holidays was made contrary to the practice in the tourism sector where public holidays are regarded as normal working days.

The award of transport and housing allowances had no legal basis.

The appeal is opposed and I deal with each ground of appeal, in turn below.

Overtime award – Grounds 1 and 2

The appellant argues that the terms of reference before the arbitrator did not mandate him to deal with the issue of overtime.  Such terms of reference were agreed to by the parties before the Labour Officer in terms of Section 98 (4) of the Labour Act [Chapter 28:01].  It is further argued that by dealing with the issue of overtime, the arbitrator acted ultra vires his mandate.

I was referred to the case of Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC/6/2015 where the Supreme Court held that exceeding terms of reference to arbitration is a clear misdirection at law.

In response, the respondent referred me to his submissions before the arbitrator which relied on the provisions of Statutory Instrument 124 of 2013 (the Collective Bargaining Agreement: Tourism Industry General Conditions as a basis for the overtime claim.

A perusal of the terms of reference before the arbitrator however shows that the arbitrator’s mandate was limited to considering the questions of cash in lieu of leave, public holidays, allowances and underpayments.

I find therefore that the question of overtime was ultra vires the arbitrator’s terms of reference and he misdirected himself by delving into it.

There is no basis therefore for me to consider ground 2 of appeal following my finding on ground 1 of appeal.

Public Holidays award – Ground 3

It is the appellant’s case that the arbitrator misdirected himself both on the facts and at law.  It is submitted that the Zimbabwe Federation of Trade Unions (ZFTU) confirmed that within the tourism sector public holidays are regarded as normal working days.

It is further argued that section 9 (6) of SI 124/13 relied upon in giving this award, does not deal with payment for public holidays but rather deals with overtime rates of pay.

A further contention is that the amount awarded is so exorbitant and outrageous since it suggests that the respondent worked on public holidays amounting to ten months during the period of 2013 to 2015 when Zimbabwe only has only eleven days per year as public holidays.

The respondent disputes the authority of the ZFTU to pronounce on public holidays within the sector.  It is argued too that section 9 (6) of the Statutory Instrument is clear regarding public holidays.

The record does not contain anything which points to the authority of the ZFTU to speak authoritatively on the practice in the tourism sector.  I will not place any weight on their alleged pronouncement.

I turn to the relevant Statutory Instrument SI 124 of 2013 section 9 (6) for resolution of this issue.  The section provides as follows;

“At the discretion of the employee, the employer shall either pay overtime rates at double the employee’s current hourly wage for overtime on a day off or public holiday or substitute the proportionate time off.”

The section is placed within a section broadly dealing with overtime payments.  In section 9 (5) the Statutory Instrument prescribes that for any overtime worked during normal working days, the rate of overtime pay shall be at one and half the employee’s current hourly rates.

Section 9 (6) distinguishes overtime worked on a day off or public holiday and prescribes that the rate of overtime pay shall be at double the employee’s current hourly rates.  This dismisses appellant’s argument that within the tourism sector, public holidays are regarded as normal working days.

As to the quantum of the award, the arbitrator limited the claim to the period 2013 to 2015 presumably on the basis of prescription.  A perusal of the award itself and submissions before the arbitrator by both parties does not show how the amount of $3 100.00 was arrived at.  I am unable to say whether this amount is exorbitant and outrageous in the circumstances though noting that Zimbabwe has a total of 12 days of public holidays per year.

In my opinion, the figure of $3 100.00 has just been plucked from the air and that is a misdirection.  See National Engineering Workers Union v Ntombizodwa Dube SC 1/16.

Consequently ground of appeal 3 partly succeeds.

Ground 4 – Transport and housing allowances

Mr Mukwindidza, for the appellant argued that Section 13 of the Labour Act which the arbitrator based his award for these terminal benefits of transport and housing allowances is inapplicable where one retires from employment.  Such retirement benefits are said to be dealt with in terms of the Pension and Provident Fund Act and the National Social Security Authority Act.

The respondent’s counter argument is that Statutory Instrument 146 of 2013 entitles him to these allowances and the arbitrator was correct in so awarding.

In SI 146 of 2013 Part 1 thereof deals with the leisure sector in which the appellant falls.  It proceeds to provide for allowances for those falling in sectors I and II.  A transport allowance of $36.66 per month where transport has not been provided is prescribed whereas an accommodation monthly allowance of $47.14 is provided where no accommodation is provided directly.  The respondent claims these as entitlements he was deprived of during his employment.

Section 13 of the Labour Act provides as follows,

13 Wages and benefits upon termination of employment

Subject to this Act or any regulations made in terms of this Act, whether any person –

is dismissed from his employment or his employment is otherwise terminated; or (my emphasis).

resigns from his employment; or

is incapacitated from performing his work; or

dies;

he or his estate, as the case may be, shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, ….”

I do not think that when an employee leaves work through retirement, that situation is excluded from the import of Section 13 of the Labour Act.  In my opinion, termination of employment is an employee’s departure from work either voluntarily on the employee’s part or at the hands of the employer.  Retirement is a form of termination of employment which is therefore covered by section 13 of the Labour Act.

It could not have been the legislature’s intention to ensure that an employee would be entitled to all outstanding salaries and benefits up to the time of such termination, except where it is by way of retirement.  The Pension and Provident Funds Act [Chapter 24:09] deals with the registration, incorporation, regulation and dissolution of pension and provident funds and matters incidental to this.  The National Social Security Authority Act [Chapter 17:04] provides for the establishment of social security schemes for the provision of benefits for employees and matters incidental thereto.  Both statutes would not address any benefits due to the respondent up to the time of his retirement.

There was therefore no error on the part of the arbitrator in awarding the transport and accommodation allowances.

Accordingly the appeal partly succeeds as follows.

The award of overtime is set aside in its entirety.

The award on payments for public holidays is remitted back to the arbitrator for proper quantification at the rate of double the respondent’s hourly rates for the public holidays in question.

The transport and housing allowances award is upheld.

Messrs Bere Brothers, appellant’s legal practitioners