Tandarike Chibade v National Spring Steel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/337/2024
HARARE, 24 JUNE 2024
CASE NO LC/H/284/24
19 AUGUST 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/337/2024

HARARE, 24 JUNE 2024	CASE NO LC/H/284/24 19 AUGUST 2024

TANDARIKE CHIBADE	APPELLANT

NATIONAL SPRING STEEL	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-Ms N. Matongwana, Unionist

For Respondent	- Mr G. Mandizvidza, Director

MUSARIRI, J:

On 17 March 2023 at Harare, Designated Agent, P. Chiyangwa, made a determination. She ordered respondent to pay appellant an amount of ZWL$34,912,50 in respect of outstanding leave pay. Appellant then appealed the determination to this Court in terms of Section 92 D of the Labour Act Chapter 28:01 hereafter called the Act.

Respondent opposed the appeal.

The grounds of appeal were quartet thus,

‘

“1. The designated agent failed to consider that the appellant is entitled to June 2022 salary,

The designated agent erred in failing to consider that the appellant is entitled to compensation for loss of employment.

The designated agent erred by awarding the appellant cash in lieu of leave using June 2022.

4. The designated agent failed to consider that appellant is entitled to overtime.”

The relevant issues raised by these grounds shall be dealt with in turn.

A: Whether appellant is entitled to salary for June 2022

The Designated Agent (DA) analysed the issues before him as follows

“The Designated Agent in her analysis considered written and oral submissions made by both the Claimant and the Respondent in relation to the law. The issue to be decided is on the alleged non-payment of terminal benefits and overtime.

It is clear from the submitted documents that the Claimant was employed on monthly fixed term contracts of employment which were renewed after the expiry of each contract. On record are two employment contracts which were entered into between the Claimant and the Respondent. The last contract of employment was for the period 1st May 2022 to 30 June 2022 which was signed by the Claimant on the 5th of May 2022. Thus, it is not in dispute that the Claimant was employed on a fixed term contract. The Respondent together with the Claimant’s representative agreed that the Claimant was employed for a period of 7 months.”

In his statement of claim dated 16 February 2023 appellant did not include the claim for June 2022 salary. However, his Replication dated 8 March 2023 claimed “8 days salary for June in addition to its statement of claim which is $6-90 x 8 days = $55-20.” In its heads of argument respondent argued that

“(d)….Accordingly, the Appellant was not entitled to the June 2022 salary not only because he did not claim it at the Hearing aquo but even if he had claimed it, he was not entitled to it as he was away from work without official leave. Hence this ground of appeal must and should fail.”

The amount was claimed in ZWL, a currency/bond which has since been replaced by a new currency, ZWG. The claim in ZWG converts to an amount worth less than US$1-00. Thus, the claim amounts to a triviality under the de minimis rule (the law does not deal with trivialities).

B Whether the appellant is entitled to compensation for loss of employment:

The DA opined thus

“In terms of the Labour Act (Chapter 28:01) compensation for loss of employment is only paid where the Claimant was engaged on a contract of employment without limit of time. …The provision of this section [12(C)(2)] do not apply to the circumstances of the Claimant who was employed on a fixed term contract of employment that had a start date and an end date.”

In its heads respondent argued that appellant was not entitled to the claim because

“he left the employer without notice and when he came back, he did not come to claim his job back and explain his absence; he came back to demand a package as if he was unlawfully dismissed. If he had come and demanded his job back and had been refused, it would be a different story altogether.”

The applicable provision is actually section 12(4b) of the Act which provides that

“Where an employee is given notice of termination of contract in terms of subsection (4a) and  such employee is employed under the terms of a contract without limitation of time, the provisions of section 12 C shall apply with regard to compensation for loss of employment.”

It is common cause in casu that appellant was on a fixed term contract. Accordingly, he does not qualify for compensation for loss of employment as correctly found by the DA.

C  Whether the computation of leave pay was correctly done:

The DA ruled thus

“The Claimant’s representative submitted that the Claimant was entitled to cash in lieu of leave for a period of 17,5 days. In his response the Respondent argued that the Claimant had not reached the ‘qualifying service.” Submissions by the Respondent show that the Claimant’s leave days remain outstanding. Vacation leave days accumulate at the rate of 2,5 per month. For the 7 months that he worked the Claimant is entitled to cash in lieu equivalent to 17,5 days.

…

The monthly wage for grade A2 in June 2022 was ZWL$60,617-67 whilst the weekly wage was ZWL$60,617-67 whilst the weekly wage was ZWL$13,964-28. Hence, the amount owed is ZWL$1,995-00 X 17,5 day; = ZWL$34,912-50.

In his heads of argument appellant made a bald averment thus

“10 The designated agent erred by awarding applicant cash in lieu of leave using June    2022

rate.”

The argument was not clarified or developed in the heads.  Neither did his oral submissions deal with the appropriate rate. The 3rd ground of appeal is as good as abandoned.

D Whether appellant was entitled to payment for overtime: The DA wrote,

“The Claimant’s representative has claimed overtime without evidence. The claim for overtime could not be substantiated. In terms of the Industry Collective Bargaining Agreement Statutory Instrument 107 of 2022 clause 15, it is the employer who approves overtime work. There is no proof to show that the Claimant was requested to work overtime.”

In his heads of argument appellant made another bold averment as follows,

“The designated agent failed to consider that the appellant is entitled to overtime.”

The averment was not clarified or developed. Same goes for his oral submissions. As correctly noted by the DA he who claims must prove his claim. See also.

Nyahondo v Hokonya  1997(2)457 (S)

Per Korsah JA at P459 D

“The general principle is that he who makes an affirmative assertion, whether plaintiff or

respondent, bears the onus of proving the facts so asserted.”

CONCLUSION

All the relevant issues raised by appeal were resolved against him by the foregoing analysis. Therefore, the 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