St Michaels Mission Hospital v Phillip Ziyenge & 15 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/185/2020
HARARE, 05 NOVEMBER 2019
CASE NO. LC/H/05/19A
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/185/2020

HARARE, 05 NOVEMBER 2019		      	 CASE NO. LC/H/05/19A

AND 28 AUGUST 2020

St Michaels Mission Hospital 				Appellant

Phillip Ziyenge & 15 Others 				Respondents

Before Honourables G. Musariri, & C. Kachambwa, Judges

For Appellant			- Mr TJ. Mafongoya, Attorney

For Respondent			- Ms L Ngoshi, Respondent

MUSARIRI, J:

On the 13th December 2018 at Harare, Arbitrator S. Nehowa made an award.  She ordered Appellant (employer) to reinstate Respondents (employees) without loss of salary and benefits.  Alternatively she ordered the employer to pay the employees damages in amounts either agreed by the parties or quantified by her.  The employer then appealed to this Court against the award.

The 1st ground of appeal charged that the Arbitrator made a determination “against a non-legal persona as cited despite a preliminary point having been raised and not disposed on the record by the Tribunal”

Indeed the employer raised this point before the Arbitrator.  That was by way of the Respondent’s New Statement of Defence dated the 5th September 2018.  However the employer then filed the Respondent’s Consolidated New Statement of

Defence dated the 26th September 2018.  The 1st paragraph of the latter document declared that only 2 issues remained for determination.  The issues were set out as

Whether the Claimants were unfairly dismissed; and

Whether Claimants are entitled to payment for February 2012 to September 2012 (sic) alleged non-payments.

The issue of mis-citation of the employer was not mentioned.  I consider that issue having been dropped was thereby abandoned.  The Arbitrator was no longer required to rule thereon.

The second ground of appeal complained that the Arbitrator erred by making a finding of unfair dismissal yet the initial reference to the National Employment Council had been for constructive dismissal.  Again this ground contradicts the stance Appellant took in its aforesaid Consolidated New Statement dated the 26th September 2018.  Therein the employer declared that the issue whether the employees were unfairly dismissed was the first issue.  That rendered the question of constructive dismissal a non-issue at least from the employer’s point of view.  In any event constructive dismissal is a species of unfair dismissal.  I consider that the employer is splitting hairs on this point.

The 3rd ground of appeal stated that the Arbitrator wrongly placed the onus of proof upon the employer.  The issue was whether the contracts were for permanent employment or fixed –term employment.  This is how the Arbitrator dealt with this point

“The Respondent is arguing that the claimants were on fixed term contracts at the same time states that the contracts were terminated through retrenchment.

The Respondent is playing hot and cold and this gives a clear picture that the termination of the contracts were unfairly done as there is no tangible evidence to show what really transpired.  If it was a retrenchment exercise as proffered by the respondent, the signed copies were simply supposed to be availed to the tribunal same applies to had it been fixed term contracts, such contracts should also have been availed”

In simple terms the Arbitrator discredited the employer’s claim of fixed- term contracts.  This was because of the employer’s contradictory claim that the employees were retrenched.  Such material contradiction in a witness statement permits if not compels the arbiter to discredit the witness.  That left the employees’ word that they were permanent employees.  Accordingly l find nothing untoward in the Arbitrator’s rejection of the employers’ claim of fixed-term contracts.

The 4th ground of appeal stated that the Arbitrator wrongly found that the 14th Claimant was unfairly dismissed.  The employer claimed that the employee resigned.  Clearly the employer had the onus to prove the alleged resignation.

The Arbitrator did not deal with the alleged “resignation” in her analysis.  Also the employer’s Consolidated Statement submitted to the Arbitrator does not deal with the alleged resignation by the 14th Respondent. Its paragraph 7 stated that

“7. The Claimants neither resigned as mandated in terms of Section 12B of the Labour Act.”

That is the exact opposite of what the employer now alleges against the 14th Respondent.  This is another example of the contradictory stances the employer

took in this matter.  The statement amounts to an admission that the 14th Respondent did not resign.

The 5th ground of appeal declaimed that the Arbitrator failed to uphold a legal agreement between the parties “on payable salaries and benefits despite monumental evidence on the record proving existence and recognition of such.”  The Arbitrator ruled thus,

“It is noted by the tribunal that respondent was below the stipulated minimum wages for the industry and contravening Section 6(1) of the Labour Act Chapter 28:01.  The respondent can only be allowed to pay below stipulated wages after being granted an exemption and there is no record to show that such was granted.”

The parties’ agreement on salaries and benefits is overridden by the minimum set for the Industry in the relevant statutory instrument/s.  The Arbitrator found that the employer was paying the employees’ wages which were below the minimum.  The ground does not dispute the finding.  It however sought to say that the parties agreement on the wages was sacrosanct and should not be interfered with.  Clearly that is a wrong position.  The Legislature can interfere with contracts by incorporating therein terms beneficial particularly to the weaker parties.  Otherwise employers could get away with paying slave wages to employees who are unable to press for better wages.

The last ground of appeal is a conclusion based upon the 2nd ground.  It is not a stand – alone ground.  The 2nd ground having been disposed of herein, the last ground falls away.  All in all I find that the appeal in casu  lacks merit.  It needs be dismissed.

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

I agree				C KACHAMBWA

J-U-D-G-E