Ship to Shore Institute v Ntokozi Dube

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/290/24
HARARE, 28 MAY, 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 28 MAY, 2024

04 JULY 2024

JUDGMENT NO LC/H/290/24 CASE NO LC/H/186/24

SHIP TO SHORE INSTITUTE	APPELLANT

NTOKOZO DUBE	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- Mr P. Chivhenge, Attorney

For Respondent	- Mr A. Nyamukondiwa, Attorney

MUSARIRI, J:

On the 2nd February 2024 at Harare, Arbitrator S Mudimu issued an award. She ordered appellant (employer) to pay respondent (employee) a sum of $11, 900.00 in respect of arrear salaries and leave pay. Appellant then appealed the award to this Court in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were quintet thus;

“1.	The Honorable Arbitrator grossly misdirected herself in failing to determine the issue of compensation for loss of employment and notice pay which issues had been referred to her for determination.

The Honorable Arbitrator erred in finding that the Respondent was a permanent employee when no such evidence was led to confirm such a finding.

The Honorable Arbitrator erred in applying the wrong test in establishing whether an employment relationship existed between the Appellant and Respondent beyond March 2023.

The Honorable Arbitrator erred in accepting the Respondent’s contention that she was earning a monthly salary of $850.00 in the absence of evidence confirming the same.

The Honorable Arbitrator erred in granting the relief sought when no evidence was led to establish the non-payment of arrear salaries and cash in lieu of leave.”

The 1st ground is discounted on the basis that it is a ground available to respondent as it was her claim which was allegedly ignored by the Arbitrator. Further Appellant cannot make it its ground because it is not seeking any relief in respect thereof. The remaining grounds raise four

(4) issues which are dealt with hereafter.

Whether respondent was a permanent employee of appellant:

Whether respondent’s employment by appellant extended beyond March 2023:

The two issues will be dealt with as one. The relevant contract of employment is filed of record. Clause 1 thereof indicates the date of commencement as 1st April 2021. Clause 2 notes the date of termination as 31st March 2023.

‘’This contract shall in no way whatsoever lead to any legitimate expectation of further employment beyond the contract’s date of termination. Only the signing by

both parties of a period beyond the date of termination of this contract, shall constitute such an expectation.’’

On this issue the Arbitrator opined thus,

“It is rather surprising for the Respondent to argue that the claimant’s contract of employment expired on 31st March 2023 and was not renewed and deny having any employment relationship with the claimant beyond 31 March 2023 yet claimant continued to run the school up to June 2023. Evidence availed before this tribunal show without doubt that the Respondent and claimant were in communication in regards to the affairs of this school up to June 2023. It is this tribunal’s considered view that the Respondent is trying to hide behind her little finger in trying to deny her employment relationship with the claimant and is not being fair and honest/truthful in her approach to this tribunal thus violating the provisions of Section 2A of the Labour Act (28:01) which advocates for social justice in the workplace.”

Appellant sought to impugn this finding by reference to an extract of Whatsapp chats on record. The relevant portion reads;

“Monday will be my last day at Hatfield. Since my actual contract ended March 30 2023, I don’t wish to renew it.

26/06/23, 08:09- Ship to Shore Institute: good morning please let me know when we can meet as I can’t continue running the school.”

Appellant relied on the first part of the chat to argue that the contract ended in March. Yet the second part shows that respondent was still running the school in June. This is part of the chats the Arbitrator rightly relied on to find that the contract extended beyond March 2023. Appellant wrongly sought to rely on part of the chat taken out of context.

The finding by the Arbitrator is a finding of fact which cannot be impugned in the absence of a show of irrationality

See	Elford v Awake Grace SC 104/21 Per MATHONSI JA at P 6,

“It is a salutary principle in this jurisdiction that an appellate court will not easily interfere with factual findings of the lower court. It will only do so where there has been such a gross misdirection on the facts, so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”

Appellant has failed to show that the finding by the Arbitrator amounts to gross error. Therefore the Arbitrator correctly found that appellant was employed by respondent on a fixed term contract which was then renewed by tacit relocation up to June 2023.

Whether the applicable salary was US$850.00 per month:

The Arbitrator opined;

“Claimant stated that she used to sign in Respondent’s A5 black diary for her monthly salary etc, a fact which Respondent is denying.However on a balance of probabilities, this tribunal is persuaded to accept the claimant’s assertion that the black diary is in existence… This tribunal is convinced that the Respondent was aware that the claimant’s salary had increased to $850.00 USD.”

This is another factual finding based on the balance of probabilities. It is supported by extracts from the diary. Further it is natural to expect a wage increase in an employment contract which extended over two years. Nothing irrational was shown in the finding.

Whether non-payment of arrear salary and leave pay was proved:

The Arbitrator stated;

“Respondent is not denying owing the claimant leave days but is arguing on the quantum which Respondent feels is excessive. The Respondent also feels that since the claimant	was receiving more money than she was entitled to her, the cash in lieu of leave is considered covered. This tribunal is of the considered view and undertaking that the claimant	is	indeed		owed	arrear salaries and her cash in lieu of leave days.”

Whether payment was made is a factual issue to be resolved by the evidence. This is a case where the employee says one thing and the employer says the other. The Arbitrator believed the employee’s evidence which was backed to some extent by documentation. The employer did not rely on any documentation except the contract of employment. This tilted the balance of probabilities in the favor of the employee and hence the award in her favor. This and for reasons spelt out in the Dube case supra means that this Court as an appellate court cannot interfere with the factual finding by the lower tribunal.

CONCLUSION

All the 4 issues discussed above resolved against appellant. Perforce its appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E