Voluntary Service Overseas v Peter Mutoredzanwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/15/2016
HARARE, 19 NOVEMBER 2015 &
CASE NO LC/H/615/2015
22 JANUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/15/2016

HARARE, 19 NOVEMBER 2015 &		               CASE NO LC/H/615/2015

22 JANUARY 2016

In the matter between

VOLUNTARY SERVICE OVERSEAS					APPELLANT

Versus

PETER MUTOREDZANWA						RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	S Zingano (Legal Practitioner)

For the Respondent     S Banda (Legal Practitioner)

KUDYA J:

This is an appeal at the appellant employer’s instance against an arbitration order which ruled that it was supposed to refund the respondent employee $12 000 deducted by ZIMRA from his package.

The background to the matter is that the respondent who was in the appellant’s employment signed an employment contract which provided that the appellant would pay on his behalf all tax obligations incurred by him. At termination of the employment the parties signed yet another agreement which spoke to the fact that the respondent would not be liable to pay tax under the Zimbabwean law.

ZIMRA deducted income tax his package and an extra $12 000 on the net sum due. The appellant duly paid the tax levied on the money but refused to pay the extra $12 000. Its argument was that the clause signed in the termination contract was illegal and unenforceable hence it could not be obliged to reimburse what the respondent had lost from his package dues.

This drove the parties to arbitration where it was ruled that the appellant was obliged to pay the respondent the $12 000 which was deducted by ZIMRA as extra tax. This did not go down well with the appellant and prompted it to appeal to this court which appeal is the subject of this judgment.

The law is settled that appeals against arbitral decisions are only on points of law and not fact. If it is to be based on fact there must be a demonstration of gross unreasonableness in the exercise of discretion by the tribunal in question. See section 98 (10) of the Labour Act and Muzuva v United Bottlers 1994 (1) ZLR 217 (S). Stemming from the law espoused in the cited authorities the only question to be answered here is whether the arbitrator erred at law to hold as he did or whether he grossly misdirected himself to interpret the facts of the case as he did.

For the appellant’s part the main argument is that by virtue of the illegal clause in the termination contract it was not obliged to pay. It also argued that the engagement contract and the termination one had to be read in isolation as they spoke to conflicting things in particular where the termination one sought to breach the law by stating that the respondent is  not liable to pay tax under Zimbabwean law. To that end the appellant maintained that the loss incurred by the respondent should therefore just fall where it lies.

On the other hand the respondent maintained that the contract of employment was clear that all tax obligations would be borne by the appellant. He argued that it was not proper to severe the two contracts as their net effect was still that the tax obligations had to be assumed by the employer. He argued further that the law is clear that the courts would not interfere with contracts freely made by parties even if conditions of same sound onerous. To that end he cited the case of Magodora v Care International Zimbabwe SC 24-2014. A look at the facts of the matter at stake speaks clearly to the fact that the parties had agreed that tax obligations were to be met by the employer.

In fact it is apparent that the respondent is not challenging the payment of tax. Rather his only saying that such obligation must be assumed by the appellant. Failure to do so has depleted his package by the extra tax deducted by ZIMRA. The argument about the clause in the termination agreement is only a façade if the contract terms are read holistically. In the premises the court is not persuaded that there is any point of law or fact which the arbitrator can be said to have breached which warrants this court’s interference.

In the result the appeal should fail.

IT IS ORDERED THAT

The appeal being devoid of merit in its entirety, it be and is hereby dismissed with costs.

Ziumbe & Partners, appellant’s legal practitioners

J Mambara & Partners, respondent’s legal practitioners