Tafadzwa Sakarombe v Sanders Tawanda Gutu & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/803/2016
HARARE, 2 NOVEMBER 2016 &
CASE NO LC/H/LRA/106/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/803/2016

HARARE, 2 NOVEMBER 2016 &				CASE NO LC/H/LRA/106/2016

16 DECEMBER 2016

In the matter between

TAFADZWA SAKAROMBE					APPLICANT

Versus

SANDERS TAWANDA GUTU					1ST RESPONDENT

And

ESSAR INFRASTRUCTURE ZIMBABWE			2ND RESPONDENT

Before the Honourable Muchawa J

For the Applicant		In person

For the 1st Respondent	C Mavhondo (Legal Practitioner)

For the 2nd Respondent	Ms R Zakeo (Legal Practitioner)

MUCHAWA J:

This is an application for confirmation of a ruling and order made in terms of section 93 (5a) and (b) of the Labour Act [Chapter 28:01], as amended.

The applicant is a labour officer and the author of the ruling and order subject to confirmation.

The first respondent is a former employee of the second respondent. He was employed as a driver on a monthly renewable contract from February 2013 to July 2015. Upon the expiry of the last contract, there was no renewal of same.

The dispute brought before the applicant was of alleged non-payment of terminal benefits, overtime and underpayment of wages.

The applicant dismissed the first respondent’s claim that his contract of employment had mutated from a fixed term contract to one of indeterminate duration.

A claim for cash in lieu of leave days was upheld to the tune of $179-99. Also upheld and conceded to by the second respondent was the claim for $1015-08 in respect of public holidays worked.

The claim for a service increment was dismissed on the basis that it was not a contractual entitlement. On the same basis a claim for weekly off days was also dismissed.

The first respondent’s further claim of overtime of 881 days amounting to 8 369,5 hours of overtime coming to $21 467-77 was also dismissed.

The applicant prays for confirmation of the order awarding a total of $1 995-07 to the first respondent.

The first respondent opposes confirmation on the basis of the overtime claim of $21 467-77 which was dismissed.

It is submitted that the first respondent submitted adequate evidence in support of his claim in the form of log books which shows that he worked overtime in excess of the one hour accepted by the second respondent.

It is averred that contrary to the provisions in the contract of employment which provide that the first respondent would work for the six days a week at a rate of eight hours per day, he in fact worked for seven days per week for more than eight hours per day. It is further submitted that his duties involved transporting employees to respective work stations who finished work at 22.00 hours and he would finish such transporting at around 23.30 hours and worked for 365 days per year.

The second respondent questioned the overtime claim on the basis that the first respondent could not have worked for 881 days overtime from February 2013 to July 2014 as there are only 515 days.

Further, whilst conceding that the first respondent worked overtime, it was accepted only to the extent of one hour per day during which security personnel would be driven to their duty station. Such overtime is said to have been adequately compensated through the giving of an hour off daily and the payment of $50-00 monthly being payment for overtime.

The applicant made a finding that such overtime was not authorized and that without such crucial information, the claim for overtime would be difficult to sustain.

Record pages 32 and 51 contains vouchers showing payment of $50-00 to the first respondent. This however shows that it was paid for the driver’s extra duties and not as overtime.

The record contains log sheets for February 2013, March 2013 and July 2014. These reflect the first respondent as logging in at 7.00 hours and logging out at 23.00 hours or 23.30 hours.

The holiday logs for 1 to 20 December 2013 and 1 to 31 August 2013 and for 2014 relate to the claim for public holidays worked which has been already awarded to the first respondent.

The real time summary sheet for August 2014 does not reflect any overtime (record page 43).

The attendance registers for the annual shut down for December 2013, January 2014, December 2014 and January 2015 show that the first respondent would mostly knock off at 17.30 hours.

That is the sum total of the evidence placed before the applicant in support of a claim for 881 days of overtime. Clearly the first respondent failed to prove the alleged overtime.

It is a trite principle of the law that he who alleges must prove. Astra Industries Limited v Peter Chamburuka SC 27-12 puts it thus:

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

See also Book v Davidson 1988 (1) ZLR 365 (S) at 384 B – F where it was held—

“In other words he who seeks a remedy must prove the grounds thereof.”

The first respondent sought to be paid $21 467-77 being for 8369.5 hours or 881 days of overtime worked between February 2013 and July 2014. As I have already stated, this claim was not proved even on the basis of the log sheets submitted.

The applicant cannot be faulted for dismissing the overtime claim on the basis that such overtime was not authorized as no proof of same was availed. This claim running over a two year period is difficult to sustain.

Accordingly,

The ruling by Labour Officer Tafadzwa M Sakarombe, be and is hereby confirmed on the following terms:

The second respondent is ordered to pay to the first respondent a total amount of $1 195-07 being cash in lieu of leave and cash in lieu of overtime.

The rest of the first respondent’s claims be and are hereby dismissed.

The first respondent is to pay costs in the amount of $8-00.

Nsingo & Associates, 1st respondent’s legal practitioners

Gill, Godlonton & Gerrans, 2nd respondent’s legal practitioners