Tasmine Enterprises (Pvt) Ltd v Nicholas Gunika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/261/2016
HARARE, 25 FEBRUARY 2016 &
13 MAY 2016
CASE NO LC/H/234/2015
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/261/2016

HARARE, 25 FEBRUARY 2016 &			                    CASE NO LC/H/234/2015

13 MAY 2016

In the matter between

TASMINE ENTERPRISES (PVT) LTD					APPELLANT

Versus

NICHOLAS GUNIKA							RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant       J Mutonono  (Legal Practitioner)

For the Respondent    In Person

MUCHAWA J:

This is an appeal against an arbitral award.

The respondent was employed by the appellant as a till operator from 20 August 2010 to 30 June 2013. He claimed he was unfairly dismissed when he was put on leave without pay and returned to find that the respondent had closed the place of business he was operating from.

A complaint of alleged non-payment of terminal benefits was lodged with the labour officer. There was no settlement and the matter was referred to arbitration.

In his award, the arbitrator captured the issues in dispute as non-payment of terminal benefits and unfair dismissal. The arbitrator found for the respondent and ordered that he be paid the following:

Three months’ notice pay					$     873-00

Overtime for Saturdays for three years			$25 787-07

Overtime for Sundays for three years   		            $  1 119-23

Salary arrears							$  1 282-00

Underpayments						$  1 092-00

Damages for loss of employment				$  1 746-00

The appellant is disgruntled and has lodged this appeal on these grounds:

The learned arbitrator grossly erred in concluding that the employee was not paid overtime for three years on Saturdays and as such he is entitled to a total payment of US$25 787-07 (Twenty five thousand seven hundred and eighty seven dollars seven cents). In the absence of any evidence that indeed the respondent had worked on all Saturdays for three years. In any event, a portion of such a claim would have prescribed in terms of the law.

The learned arbitrator grossly erred in coming up with an award sounding in money were (sic) no evidence was led by either party regarding quantification of the claim.

The learned arbitrator erred in awarding the respondent payment of notice pay together with damages for unlawful dismissal in the absence of any legal basis for such an award.

The learned arbitrator also grossly erred when he awarded the respondent an amount of US$1 746-00 (one thousand seven hundred and forty six dollars) as damages for unlawful dismissal without even attempting to justify such an award.

The learned arbitrator also grossly erred in awarding underpayments of US$1092 (one thousand and ninety two dollars) without showing how he arrived at such a figure.

The learned arbitrator also grossly erred in coming up with figures for overtime without showing how he arrived at such figures.

The appeal is opposed. I will deal with each ground of appeal in turn below:

Grounds 1, 2 and 6   Overtime Award

The appellant argued that the arbitrator did not show how he arrived at the figures of $25 787-07 and $1 119-23 awarded for Saturday and Sunday overtime respectively. It is alleged that there was therefore no quantification done at all.

Further, it is contended that there was no evidence provided that the respondent had indeed worked on all Saturdays for three years.

Additionally, the appellant argues that a portion of such an award had already prescribed at the time of referral of the complaint. Section 94 of the Labour Act was cited in support of this.

The respondent argued that he provided proof before the arbitrator that he worked overtime and it was the appellant who failed to show when they paid the respondent.

It appears that the arbitrator had two sets of documents placed before him. Annexure A comprised of time sheets and annexure B was a bundle of payslips. These appear from record pages 34 to 78.

I have perused the submissions made before the arbitrator and the annexures placed before him. What is evident is that the respondent alleged he had worked overtime for Saturdays for three years which amounted to 10 368 hours for thirty-six days and which was claimed to translate to $25 787-07. It was also alleged that he had worked overtime for Sundays for three years which amounted to 450 hours for eighteen months.

In terms of time sheets, these are only available for September 2011 to February 2012 and then from July 2012 to April 2013. There are none available on record for the rest of the three years.

Further the time sheets only show the overtime worked on Saturdays. There are none signed for the overtime allegedly worked on Sundays.

The payslips available on record only cover January 2012 to October 2012. The respondent refuted having signed on any of these payslips and alleged they were fake. That dispute was not resolved by the arbitrator.  The rest of the period has no proof of payslips showing that the respondent was indeed paid his overtime.

The arbitrator seems to just have plucked the figures awarded from the respondent’s submissions before him. It is not clear mathematically how the amount of $25 787-07 is derived from 10 368 hours for thirty-six days nor how the amount of $1 119-23 is derived from 450 hours for eighteen months. It simply boggles the mind.

I therefore find that the arbitrator erred in awarding the amounts claimed in the absence of clear evidence of the days allegedly worked, the days claimed to have been paid for and no formula to explain how this was arrived at.

In any event, I agree that a portion of the amounts claimed had prescribed in January 2014 when the claim was referred to conciliation.

Section 94 of the Labour Act provides that no labour officer shall entertain any dispute or unfair labour practice which has been referred to him outside two years from the date when the dispute or unfair labour practice first arose.

Grounds 1, 2 and 6 consequently succeed.

Ground 3 and 4 - Damages for unlawful dismissal and notice pay award

It is argued that there was no legal basis for the notice pay and damages award.

The arbitrator is alleged to have erred by awarding damages for unlawful dismissal without hearing any evidence.

The respondent claims that the law is clear on damages but does not state this law.

In the case of American Friends Service Committee v Irene Chauke SC 99-11 the Supreme Court reiterated that it is not enough for an award of damages to be based on an unsubstantiated statement of claim. It is settled law that damages in these circumstances must be properly proved by the party seeking these.

The arbitrator erred at law by quantifying on no evidence.

As to the notice pay, the appellant makes an allegation that the respondent’s contract was a fixed term one which expired by effluxion of time and he was therefore only entitled to the money for the unexpired period of the contract.

The arbitrator however made a factual finding regarding the type of contract between the parties. The arbitrator noted that the appellant failed to produce credible evidence as to the type of employment contract as no written contract or other evidence was provided to rebut the respondent’s claim that he was on a permanent contract.

I have not been given any basis to interfere with the factual findings of the arbitrator in this regard and consequently the award of three months’ notice pay has a clear legal basis in section 12 (4)(a) of the Labour Act [Chapter 28:01].

I therefore partly uphold ground 3 of appeal in respect to the claim for damages for unlawful dismissal but dismiss it in respect to the award for notice pay. Ground 4 of appeal therefore succeeds.

Ground 5 - Underpayments

It is the appellant’s argument that the claim for underpayments was not supported by any evidence.

The respondent argues that the arbitrator looked at the relevant papers before him as well as the glaring evidence showing he was underpaid in terms of the relevant Code of Conduct.

The arbitral award however, does not show the relevant Code of Conduct referred to by the arbitrator. He seems to have used the same approach of simply going to the respondent’s submissions and plucking the figure therefrom and inserting it in his award.

That is unacceptable. It may very well be that the arbitrator will come to the same amount claimed. He however has to show how he arrived at the amount and the legal basis of this.

Ground 5 of appeal therefore succeeds.

Accordingly the appeal partly succeeds. I order as follows:

The arbitral award is set aside except in respect to the entitlement to notice pay.

The matter is referred back to the arbitrator for determination of the quantum of:

three months’ notice pay, and

entitlements and quantum of :

Overtime for Saturdays worked;

Overtime for Sundays worked;

Salary arrears;

Underpayments; and

Damages for loss of employment.

Chadyiwa & Associates, appellant’s legal practitioners