Paul Bonne v New Systems Joinery (Private) Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/117/20
HELD AT HARARE ON 30th JANUARY,2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/117/20

HELD AT HARARE ON 30th JANUARY,2020	       CASE NO. LC/H/117/19

AND 5TH JUNE, 2020

In the matter between:-

PAUL BONNE								Appellant

And

NEW SYSTEMS JOINERY (PRIVATE) LIMITED			Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr. C. Chengeta (Legal Practitioner)

For Respondent	:	Mr. C. Chipere (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award issued by the Arbitrator on the 15th August, 2019 to the effect that:-

the claimants claims for unfair dismissal be and is hereby upheld and respondent is hereby ordered to pay $375,00 as notice pay.

the claim for unpaid salaries be and is hereby dismissed.

the respondent be and is hereby ordered to pay $312,50 cash in lieu of leave to claimant.  Total payable $687,50.

The terms of reference to the Arbitrator were three and these are:-

whether or not the claimant was unfairly dismissed

whether or not the claimant was owed money in unpaid salaries and leave days and

the appropriate relief.

Appellant’s appeal as per his Notice, was based on 12 grounds some of which (7 – 12) he abandoned on the date of this hearing leaving grounds 1 – 6.  In brief the grounds were –

the arbitrator erred in considering the contracts.

The arbitrator erred in not taking into account that these contracts were unsigned and therefore not contracts at all.

The arbitrator erred in failing to take into account the verbal contract entered into by the parties as the contract without limit of time and that after the 3 months’ probation appellant became a permanent employee.

Arbitrator erred in failing to recognize that by appending his signature on one of the unsigned contracts, respondent’s director acknowledged that the pay was $1 000 and not $750 per month.

The arbitrator erred in failing to order respondent to produce records showing how much it paid appellant.

The arbitrator erred in failing to recognize that the fair and correct remedy was reinstatement without loss of salary or payment of damages in lieu.

Appellant’s prayer was to have the arbitral award set aside and that he be reinstated without loss of salary and benefits and that he be paid his salary from date of unfair dismissal to the date of reinstatement and if reinstatement is not possible that he be paid damages in lieu.

In the alternative applicant prayed that he be paid

Outstanding salary of US$4 200,00

Cash in lieu of notice US$3 000,00

Cash in lieu of leave US$416

Bonus for 4 months US$330

Total US$7 946,00 plus 5% interest US$1 983,00.  Grand total US$9 929,00.

Paragraph 31 of appellant’s statement of claim is his prayer before the arbitrator.  He prayed for:-

US$3 000 for unfair dismissal.

US$4 200 as outstanding salary

US$416 leave pay

US$330 pro rata bonus

US$1 983	being 5% interest

Total = US$9 929,00.

It is a trite position of the law that an appellate court will be slow in interfering with the tribunal aquo’s findings on facts unless it is shown that the factual findings were so grossly unreasonable

ZINWA  vs  MOYOUNOTSWA SC 28/15

See also:	VIMBAI MBISVA  vs  RAINBOW TOURISM GROUP  SC 32/O9

In paragraph 15 of his Heads of Argument appellant makes the admission that the arbitrator made factual findings.  Were the factual findings by the Arbitrator so grossly unreasonable to warrant this Court’s interference?

Before the Arbitrator, appellant placed his claim as unfair dismissal and non-payment of terminal benefits and his prayer is as captured in paragraph 31 of the claim alluded to above.  It is clear from the said paragraph that he did not seek reinstatement as a remedy for the unfair dismissal.  Instead he sought that he be paid an amount of US$3 000.

It is the legal position that the primary remedy for unfair dismissal is reinstatement for which damages are awarded in the alternative.   However it is to be noted that, though it is the primary remedy reinstatement is not automatic as the employer has room to prove that it is not viable as the employment relationship between it and the employee is no longer tenable.

In a normal case scenario therefore, where the employee prays for reinstatement, the arbitrator would, if the circumstances demand it, make an award for reinstatement with the alternative for damages, for an employer is not to be compelled to keeping in his employment a person with whom the relationship has soured beyond reconciliation:-

NICHOLAS HAMA

vs

NATIONAL RAILWAYS OF ZIMBABWE 1996(1) ZLR 664 (S)

In casu however it is noted that respondent did not allege any sour relationship, it is appellant who prayed for damages for the unlawful dismissal.  It is this prayer that the arbitrator granted after considering the evidence placed before him and found that appellant was unlawfully dismissed.

By not placing the issue of reinstatement before the arbitrator and specifically praying for damages, for the unlawful dismissal, it can rightly be inferred that appellant was consciously excluding the option for reinstatement.  He no longer desired to be reinstated to his job.  I find support in the case of:-

MVUDUDU vs ARDA SC 58/2015

Under these circumstances, the Arbitrator cannot be faulted in not ordering reinstatement.  He issued the appropriate relief as per his term of reference.  His decision not to, cannot reasonably be said to be grossly unreasonably.  It therefore cannot be interfered with by this Court.

He who alleges must prove that which is he alleges, this is trite.

FIRST MUTUAL LIFE  vs  JACKSON MUZIVI SC 9/07

After finding that appellant was unlawfully dismissed and granting the prayer for payment of damages, the Arbitrator was then enjoined to quantify the said damages.  He made the finding that the parties (appellant and respondent) entered into a verbal agreement, that the two documents (“contracts”) submitted by each of the parties were not signed by the employee and therefore unenforceable.  The one submitted by appellant had an endorsement of $1 000 as salary hand written on it and $720,00 cancelled instead.  The cancellation was signed for.  The one submitted by the responded had a salary of $720,00 endorsed and there was no cancellation.

In his pleadings appellant strongly submitted that these two documents must be ignored as they were not binding and that reference to them was a total waste of time and an exercise in futility.  In his oral submissions, it was appellant’s submission that, the document “Annexure B” was produced to show that the salary agreed on was $1000 and therefore the Arbitrator ought to have used that salary instead of $750,00 which was plucked from the air.

The contract which the Arbitrator was supposed to use was the verbal contract as per his finding.  It was for the appellant to prove his claim by producing evidence of what the salary was.  He produced a document “contract” endorsed with $1000 in pen and which document he strongly argued that it should not be considered as it was not binding for he did not sign it.  He says in his claim,

“… this document should be confined to the dust heap where it belongs.”

Appellant then contradicts himself in the same claim by stating

(paragraphs 17 – 21) that

On the last day of employment, a written contract was drawn up.

It had false information.

He was so broke, he signed the contract to get some money and leave respondent’s premises.

He was pressured into signing by circumstances beyond his control.  He had not been paid much for the past five months and he was desperate for money.

He queried the salary of $720,00 and Mr. Muzah corrected the figure by pen and signed for the change.

In view of these confusing submissions by Appellant upon whom the onus to prove fell, the Arbitrator ought not to have used $750,00 as the salary.  Even if one had to rely on the questionable “contracts” that salary is indicated as $720,00 and not $750,00.  As appellant himself submitted the arbitrator plucked his figures from the air…, but was this factual finding on the figure $750 as opposed to $720,00 so grossly unreasonable in view of the challenge the Arbitrator was faced with, as he stated in his award (Record page 8).

“However, the challenge is that there is no known salary to apply in these circumstances.”

I do not think so.  I therefore do not find any legal basis to interfere with the arbitral award.

In the result, the following order is made, that the appeal be and is hereby dismissed with costs.

CHENGETA LAW CHAMBERS- Appellant’s legal practitioners

CHARAMBA & PARTNERS – Respondent’s legal practitioners