Samuel Kambate & Mollen Fenyera v G & C Waugh Sales & Merchandising

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/210/2016
HARARE, 8 FEBRUARY 2016 &
8 APRIL 2016
CASE NO LC/H/879/2014
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/210/2016

HARARE, 8 FEBRUARY 2016 &				         CASE NO LC/H/879/2014

8 APRIL 2016

SAMUEL KAMBATE						           1ST APPELLANT

MOLLEN FENYERA						           2ND APPELLANT

G & C WAUGH SALES & MERCHANDISING				RESPONDENT

Before the Honourable G Musariri  :  Judge

For the Appellants	In Person

For the Respondent	Mr T Magonde

MUSARIRI J:

The appellants worked for the respondent in Harare on fixed term contracts. The 1st appellant’s contract terminated presumably by effluxion of time. The 2nd appellant was terminated on grounds of misconduct. Both appellants then claimed they are entitled to cash in lieu of leave days not taken. The matter went for conciliation. The parties failed to settle whereupon the matter was referred to arbitration. On 25 August 2014 Arbitrator R E Nhiwatiwa issued an arbitration award. He dismissed the appellants’ claims “for lack of merit.” Thereafter the appellants appealed to this Court against the award. The respondent opposed the appeal.

The relevant portion of the appellants’ grounds of appeal read as follows:

“3.	The Honourable Arbitrator showed massive bias against claimants by ignoring claimants’ annexture A and B which were issued by the respondent but considering the respondent’s documents manufactured as an afterthought.

4.	The respondent never availed any substantiated evidence on how the leave days were exhausted.

5.	The claimants further deny that they ever utilized their vacation leave days in advance.”

The respondent countered through B Mabuza’s Opposing Affidavit thus:

“The applicants utilised all the annual leave days during the period of their employment by taking leave on two Wednesdays and one Saturday per month which makes a total of 2.5 leave days a month. The applicants were given leave day schedules which showed the dates they were supposed to be on leave for a fixed period as this was the Company policy. (See Annexure B, leave redemption schedule).

The applicants by accepting and taking those leave days, it clearly means there was an arrangement between the applicants and the respondent on how the leave days were utilised.”

A copy of the leave redemption schedule is filed of record. Also on record are some of the fixed-term employment contracts. Lastly payslips were filed. All these documents confirm that the employees were entitled to 2.5 days’ vacation leave per month. They also show that by pay day there were no leave days outstanding. The inference is that the employees had taken their leave days as per the leave redemption schedule. In any case why didn’t the employees complain about the “unpaid” leave days during the currency of the contracts? The absence of timely complaints suggests that the complainants are an after-thought. In the circumstances I consider that the Arbitrator was justified in dismissing the appellants’ claims.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

The arbitration award issued by Arbitrator R E Nhiwatiwa                             dated 25 August 2014 is upheld.

G Musariri

J-U-D-G-E