Take N' Tile (Pvt) Ltd v Nyasha Mutekwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/176/25
HARARE, 16 JANUARY 2024
CASE NO LC/H/1120/24
In the matter between:-
TAKE N’ TILE (PVT) LTD
APPELLANT
And
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In the matter between: -

**TAKE N’ TILE (PVT) LTD**

**And**

**NYASHA MUTEKWA**

Before the Honourable Kudya J

**For the Appellant**  
**S. Chako (Legal Practitioner)**

**For the Respondent**  
**N. Mutekwa (In Person)**

**KUDYA, J:**

This is an appeal at the instance of the employer and a cross appeal at the instance of the employee. These appeals arise out of an arbitral award which dismissed the employee’s claims of unlawful dismissal, compensation for use of own motor vehicle and refund of tax irregularly deducted. The same award allowed the claim for underpayment of wages and medical aid benefit. The employer is aggrieved by the award of the underpayment of wages and medical aid claim. It to that end prayed that, paragraphs granting that relief be set aside and be substituted with a dismissal of those claims.

On the other hand, the employer is unhappy with the dismissal of his unlawful dismissal claim, compensation for motor vehicle use and the tax refund claim. He therefore prayed that, his cross appeal on those claims succeed and that the order denying him such be replaced by an order granting these claims.
 On the hearing date of the appeal and the cross appeal the employer dropped the point in limine which it had raised that the cross appeal was out of time. The court also indicated that the law was settled as regards medical aid and tax refund. It indicated to the parties that it would allow the appeal vis medical aid as the law on it was settled. It indicated also that the tax issue being the preserve of ZIMRA, the cross appeal based on it had to fail. The disposal of the point in limine, medical aid and tax issue left for effective determination by this court the issues of unlawful dismissal, underpayment and compensation for motor vehicle use. It is primarily these 3 issues which will be addressed by this judgment. Each of the issues is addressed below:-

**Unlawful dismissal**

Under this head the employee says that the arbitrator should have found that he was unlawfully dismissed as he was on a contract without limit of time hence on employment termination, he should have been paid 6 months’ salary as damages for loss of employment totalling US $12000.

On the other hand, the employer says that the arbitrator was correct to rule that the employee did not have a good claim for unlawful dismissal. In fact, it sought to have the unlawful dismissal claim struck off for the reason that the employee had sought incompetent relief by seeking damages before seeking reinstatement relief. It hastened to mention on the merits that, the contract was a fixed term contract which was terminated properly. To that extent there was no basis to award damages for unlawful job loss.

It is settled that a trier of facts decision cannot be upset lightly on appeal See Hama v NRZ 1996(1) ZLR664(S). In the case at hand, the arbitrator reasoned that, the contract between the parties was for a fixed duration. Notwithstanding the fact that, the employee did not sign the alleged fixed term contract there was communication between the parties that the contract was for two years. It is indeed on record that, this was communication from the employee seeking that the contract be extended to 2 years. The implication of all this was that the contract was indeed for a fixed duration. There is therefore nothing remiss in the conclusion arrived at by the arbitrator that, the contract was for fixed duration. To that end, the damages argument falls away. The cross appeal ground on unfair dismissal therefore fails.


Underpayment of wages

The employer prays that, the underpayment award be dismissed. Its argument is that it paid the employee all his dues. A reading of the payslips shows clearly that there was no consistency on the payments to the employee. What is also clear is that the bills of the payment made before the last 4 months where $2000 per month was paid indeed shows that, figures below $2000 were paid to the employee. This flies in the face of the employer’s concession that indeed the employee was entitled to $2000 yet documentary evidence presented before the arbitrator proved the contrary.

It is settled that he who alleges must prove. See Circle Tracking v Mahachi SC12/20 The employee alleged underpayment and tendered payslips which indeed confirmed the under payment. It can therefore not be argued that the arbitrator took leave of his senses when he allowed the underpayment claim. See Van Hoogstraten v Nolomwe SC4/20. The appeal ground on underpayment therefore fails.

Compensation for motor vehicle.

This claim was dismissed by the arbitrator on the basis that it had been plucked from the air. In the appeal at hand the employee baldly asserts that the USD 2500 which he is claiming is based on AA rates. He does not put the alleged rates within the factual context of the cross appeal at hand. The issue remains a baldly averred one as it did before the arbitrator. This cross-appeal ground being without foundation should fail.

Medical aid

It is settled that an employee can only be compensated for what he expended when he is claiming a medical aid benefit. See Ruturi v Heritage Clothing Pvt Ltd 1994 (2) ZLR374 In the case at hand, the employee baldly argues that the employer had agreed to pay his medical aid contributions. The arbitrator agreed with the employee’s reasoning and awarded him the claim. That was wrong as it went contrary to law See Ruturi Supra. Appeal against medical therefore succeeds

Tax refund

The employer correctly observed that this issue was not part of the terms of reference before the arbitrator. It was therefore not determined by the arbitrator. It therefore cannot be entered by the appeal on a 1st instance basis. See Mutasa v Registrar Supreme Court NO
 SC27/18. The issue can however be styled a point of law. See *Sable Chemicals v Easterbrook SC 18/10*. It however being clearly a ZIMRA issue this court has no business engaging with it. The cross appeal based on it should fail.

**Point in limine vis late appeal.**

The employer withdrew this point and that puts it to rest.

**Cost**

Both the appeal and the cross appeal being partially successful each party should bear own costs.

**IT IS ORDERED THAT;**

1. **Appeal ground on medical and being merited it be and hereby succeeds.**

2. **Paragraph 3 of the arbitral award awarding USD 5932 medical aid be and is hereby set aside. In its place the claim for medical aid is dismissed.**

3. **Appeal on underpayment of wages being without merit it be and is hereby dismissed Paragraph 2 of the arbitral award ordering the employer to pay the employee USD 20297 is to stand.**

4. **Cross appeal on unfair dismissal lacking in merit it be and is hereby dismissed Paragraph 1 of the arbitral award is to stand.**

5. **Cross appeal on compensation for use of motor vehicle being without merit it be and is hereby dismissed. Paragraph 5 of the award is to stand.**

6. **Cross appeal on tax refund being without merit it be and is hereby dismissed.**

7. **Each party bears own costs.**


Mawire JT & Associates  Appellant’s Legal Practitioners
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