The Centre v Freddy Kachote

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/196/2016
HARARE, 17 FEBRUARY 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/196/2016

HARARE, 17 FEBRUARY 2016 			     	 CASE NO. LC/H/440/15

AND 8 APRIL 2016

In the matter between:-

THE CENTRE					Appellant

And

FREDDY KACHOTE				Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr T. Marume (Legal Practitioner)

For Respondent		Mr. E. Gijima (Legal Practitioner)

MURASI J:

This is an appeal against the decision of the arbitrator.  The facts are that the respondent was employed by appellant and is alleged to have resigned.  Respondent alleged that he was owed arrear salaries and took his matter up with the Ministry of Labour.  Conciliation failed and the matter was referred to arbitration.  The arbitrator found in favour of respondent.  Appellant has appealed to this Court being dissatisfied with the decision of the arbitrator.

Appellant’s grounds of appeal are as follows;

The arbitrator grossly misdirected and erred at law, which misdirection amounts to a question of law by failing to make a finding as he ought to have done that claimant’s claim had prescribed as it was not brought to the attention of the Labour Officer within 2 years in terms of section 94 (1) of the Labour Act, [Chapter 28:01].

The arbitrator grossly misdirected and erred on the facts, which misdirection amounts to a question of law by making a finding that the parties agreed to postpone the resignation until a further date when it is clear that respondent’s resignation was a unilateral act and that what he was supposed to do was to submit the exit report which he did in March 2014.

The arbitrator grossly misdirected himself at law and erred, which misdirection amounts to a question of law by awarding respondent salaries post the 28 February 2014 which was the date of resignation when the resignation was a unilateral and final act, there was therefore no legal basis for holding that respondent was still an employee after termination of contract through resignation.

The arbitrator grossly misdirected himself at law and erred on the facts which misdirection amounts to a question of law by awarding salaries from January 2015 to date of award that is USD 58 628,40 at  the rate of USD 1 465,71 per month simple mathematics will prove that the sum should be USD 7 328,55.

The arbitrator grossly misdirected himself at law and erred, which misdirection amounts to a question of law by awarding salaries in the sum of USD 58 628,40 when it was clear that USD 17 800,00 was paid and that before tendering his resignation respondent was tendering voluntary services.

Mr Marume for the appellant submitted that the arbitrator erred in not finding that the respondent’s claim had prescribed in terms of the Labour Act.  He stated that respondent’s claim arose in January 2012 but was only brought to the notice of the Labour Officer in January 2015 which was outside the two-year period prescribed in section 94 of the Act.  In this regard, it was further submitted that the arbitrator had erred.  It was also argued that the arbitrator fell into error when he based his decision on the Prescription Act when the Labour Act clearly provided that it was superior to all other legislation in relation to Labour matters.  Mr Marume stated that the arbitrator fell into error by making a finding that the respondent remained appellant’s employee when he in fact had resigned.  It was submitted that no evidence, was placed before the tribunal that the employer/employee relationship continued after the resignation.

Mr Gijima for the respondent, stated that he abided by the documents filed of record.  On the issue of prescription, it was submitted that this was a continuing unfair labour practice from 2012 and it could not therefore be said to have prescribed.  It was further submitted on the issue of resignation that a resignation can be postponed or set aside by mutual consent and this is what had happened in the instant case.  Mr Gijima stated that there was no dispute that the respondent had not been paid his arrear salaries to which he was entitled.

It was further observed that the appeal attacks the entire finding by the arbitrator but does not address the issue of quantum.  It was argued that the decision of the arbitrator was unassailable and the appeal should be dismissed.

Precedent has shown that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection on the part of that court or tribunal.  (See generally Barros & Another vs Chimpondah 1999 (1) ZLR 58 (S)).  In that respect the court will proceed to analyse the decision of the arbitrator vis a vis the grounds of appeal filed by the appellant.

Appellant’s first ground of appeal avers that the arbitrator fell into error by not finding that the claim had prescribed.  In argument, the appellant stated that the arbitrator had placed reliance on the Prescription Act instead of the Labour Act. It is evident from a reading of the arbitrators’ “Analysis of the Evidence” that he does not refer to the Labour Act, in making a determination of the issue of prescription.  The matter was referred to the arbitrator for determination in terms of the Labour Act.  One of the terms of reference was to determine whether the claim had prescribed.  Evidently the question was whether the claim has prescribed in terms of the Labour Act. The arbitrator had this to say.

“That the claimant’s claim cannot be said to have prescribed merely because the arrear salaries that are being claimed date (s) back from 2012.  I am persuaded by the claimant’s claim that the import of section 17 (2) of Prescription Act is clearly that once a claim is made up several claims arising from one single contract cannot become prescribed before the reciprocal debt becomes prescribed.”

Indeed the arbitrator was supposed to make a determination of whether the claim had prescribed in terms of section 94.  This he did not do.  The provisions of section 94 (1) are unambiguous and they provide that the claim must be brought to the attention of the Labour Officer within two years unless it falls under section 94 (2).  A reading of the record shows that both appellant and respondent are agreed that the claims date back to January 2012.  What is clear is that the whole claim could not be found to have prescribed.  The Court inquired from Mr Marume what should happen to the period which was not prescribed.  His reply was that the arbitrator should have determined what periods fell within the prescribed period and which periods fell outside that period.  He further stated that the arbitrator should have stated the cut-off period and taken into account the fact that appellant had paid the sum of USD 17 000,00 to the respondent.  It was a further submission that appellant had paid the respondent in full.

I wish to digress a bit and deal with the issue that appellant paid the sum of $17 000,00 in full.  This, I believe, refers to the period under review.  Apart from the prescription referred to in section 94 of the Labour Act which deals with jurisdictional prescription, there is another aspect of prescription.  This is termed extinctive prescription.  Whilst jurisdiction prescription is precisely provided for in the Labour Act, extinctive prescription is covered by both common law and statute.  In statute prescription is covered by the Prescription Act [Cheater 8:11].  In general, the doctrine of prescription is a proponent  of the fact that society is intolerant of persons who leave it until too late to make claims against debtors and a creditor is supposed to be vigilant in enforcing his/her rights.  However in both the common law and statute a creditor may safely forebear to institute action against a debtor if the debtor acknowledges liability for the debt.  It is also correct that recognition of the debt either expressly or tacitly goes on to interrupt prescription.  In De Beer vs Gedye and Gedye 1916 WLD 133 it was stated:

“If a debtor admits the debt by an act of any kind, if he pays a part of the capital or the arrears without protest, if he gives security, if he asks for time to pay, if he gives the creditor the enjoyment of the hypothecated property, if he gives an order to pay although in his absence, if he comments to the thing claimed being placed in sequestration …. which imports an acknowledgement express or tacit of the debt … there will be a civil conventional interruption which will prevent the running of prescription.”

This issue has had to be clarified as appellant has stated that the respondent was paid a sum of $17 000,00 during the period in question.  As far as extinctive prescription is concerned, the appellant’s payment would have worked to interrupt the running of prescription and not available to appellant.

The appellant’s second ground relates to the arbitrator’s finding that there was a mutual understanding to postpone the effective date of the resignation tendered by the respondent.  I am of the view that the arbitrator fell into error in making such a finding.  There was no evidence adduced to show that this was indeed the position.  That finding ought to be set aside and the ground of appeal upheld.  The same applies to the third ground of appeal.  As there was no evidence that the appellant and respondent agreed to waive the date of resignation, the arbitrator could not award salaries post the resignation date.

The court notes that the fourth and fifth grounds of appeal do not raise points of law.  They raise factual issues and therefore do not comply with the provisions of section 98 (10) of the Labour Act.  The two grounds of appeal should therefore be dismissed on that score.

As stated earlier the arbitrator fell into error as regards the first ground of appeal.  The arbitrator should have made the determination of whether the claim was prescribed in terms of section 94 of the Labour Act.  This he did not do.  However a reading of the record shows that part of the claim cannot be said to have prescribed.

I must state that even though this Court has power to alter the decisions of a lower court or tribunal, it should have the necessary information to do so.  In casu the evidence was not canvassed as to what period falls within or outside the period of prescription.  Appellant has not been helpful either or stating what it views to be the period falling within prescription.  A second issue arises as to what payments were made to respondent as salaries for the period in question.  In this regard evidence should be adduced to show what salaries respondent is owed up to the date he resigned from appellant’s employment.  It is therefore necessary that the matter be remitted to the arbitrator a quo to hear evidence on the two issues.

In the result the Court finds that the appeal partially succeeds.

The Court makes the following order:

The appeal partially succeeds.

The arbitral award of Honourable Kwaramba of 7 May 2015 is hereby set aside.

The matter is remitted to the same arbitrator to hear evidence on:

The period prior to 2 February 2014 which is not covered by prescription as provided in section 94 (1) of the Labour Act [chapter 28:01].

The amounts owed to respondent, as arrear salaries for the respective period in (a) above.

The re-hearing should take place within sixty (60) days of this order failing which either party may approach the arbitrator for quantification in respect of issues in (3) above.

That there be no order as to costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mapaya & Partners, Respondent’s legal practitiners