Nemchem International v Anceline Madhori

### Preamble
Judgment No. SC 162/20
1
Civil Appeal No. 221/18
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DISTRIBUTABLE:          (152)

NEMCHEM     INTERNATIONAL

v

ANCELINE     MADHORI

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAVANGIRA JA & BHUNU JA

HARARE: FEBRUARY 8, 2019 & NOVEMBER 20, 2020

C Tandwa with TL Machinga, for the Appellant.

T Marume, for the Respondent.

BHUNU JA:  This is an appeal against the judgment of the Labour Court in which it dismissed the appellant’s appeal against the determination of the Negotiating Committee. The Negotiating Committee had in turn upheld the appellant’s appeal against the decision of the Local Joint committee which had upset the Disciplinary Committee’s decision to dismiss the respondent from employment on allegations of misconduct.

BRIEF SUMMARY OF THE CASE.

The facts of this case are by and large common cause. The undisputed facts are that the appellant is in the business of providing cleaning services to its clients. It employed the respondent as a cleaner. The appellant dismissed the respondent from its employment on allegations of violating safety rules or measures in contravention of para 8, Part IV Group IV of the National Employment Council for the Commercial Sectors (NECCS).

The background to the dismissal is that in January 2016 the appellant was providing cleaning services for one of its clients Simbisa Brands hereinafter referred to as the client. The client is in the business of manufacturing food. Both National Social Security (NSSA) Regulations and City of Harare By-Laws prohibit the bringing in of food from outside into the client’s factory. In consequence thereof the client prohibited staff members including the respondent from bringing food from outside for consumption on its premises.

Following the prohibition, the client offered its members of staff subsidised food. To ensure payment for the food, it required them to fill in compulsory food deduction forms regardless of whether or not one intended to accept the offer. The food deduction form was meant to effect deductions from the employee’s wages if he or she consumed the food so offered. The respondent refused to sign the food deduction form arguing that he did not accept the offer.

THE CHARGE AND DEFENCE

On those facts the appellant alleged that the respondent’s refusal to fill in and sign the food deduction form amounted to a violation of safety rules or measures in contravention of para 8 of Part IV, Group IV offences under the NECCS code of conduct.

The respondent denied the charge arguing that his conduct was innocent as he did not violate any safety rules or measures. On 1 February 2016, he wrote to the respondent proffering his defence. The letter reads:

“1/02/16

REF: SIGNING OF FORMS TO AUTHORISE DEDUCTION OF FOOD

Dear Sir

I was given forms to fill and I did not sign because I felt that I would (be) left with nothing after the deduction of food money. I use 3 dollars a day 	for transport. So I can provide myself with food. I will not go to their canteen.

Yours Anceline Madhori”

APPLYING THE LAW TO THE FACTS

Save for the disciplinary committee all the other adjudicating authorities a quo found that the respondent was not obliged to sign the food deduction forms and absolved him from any wrong doing by refusing to sign the form.

At the commencement of this appeal hearing the court posed the question whether the intended food deductions from the respondent’s wages were lawful.

Counsel for the appellant submitted that the appellant was obliged to take lawful safety measures, failing which it faced serious consequences. It was therefore obliged to effect the deductions in terms of s 12 A (6) (e) of the Labour Act [Chapter 28:01].

Counsel for the respondent countered that the form did not amount to a safety measure. The safety measure was to bar the respondent from bringing in food from outside. The food deduction form did not bar him from bringing in food from outside. Thus by refusing to sign the food deduction form the respondent did not violate any safety rules or measures.

There is merit in counsel for the respondent’s argument. Undoubtedly the food deduction form was not a safety measure but a debt collection mechanism. For that reason alone it is illogical to say that by refusing to sign the food deduction form the respondent violated any safety rules or measures. This is for the simple but good reason that both the NSSA Regulations and the City of Harare By-Laws did not require the respondent to sign any food deduction forms. All that they required was that he be barred from bringing food onto the premises.

Turning to the legality of the deductions, s 12 A (6) (e) of the Act provides as follows:

“(6) No deduction or set-off of any description shall be made from any remuneration except—

(a)  where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence;

(b)   amounts which an employer is compelled by law or legal process to pay on behalf of an employee;

(c)   where an employee has received an advance of remuneration due, the amount of such advance, up to an amount not exceeding twenty-five per centum of the gross remuneration owed;

(d)   by written stop-order for contributions to insurance policies, pension funds, medical aid societies, building societies, burial societies and registered trade 	unions;

(e)	by written consent of an employee, for repayment of money lent by the employer on terms. (My emphasis)

What strikes the eye at first glance is that s 12 A (6)  (e) of the Act prohibits the deduction from an employee’s wages of any money for the repayment of any money lent by the employer to the employee without the employee’s written consent. In casu the appellant had not advanced any money to the respondent and the respondent had not consented to any deductions for food that he had not consumed.  The appellant was therefore prohibited from effecting food deductions from the respondent’s wages by operation of law. That being the case, it is axiomatic that without the employee’s consent an employer cannot lawfully effect any deductions from his/her employee’s wages in terms of s 12 A (6) (e) for any debt, real or imagined.

DISPOSITION

Having come to that conclusion it follows that the order to sign the food deduction form was patently unlawful. The respondent was within his rights in disobeying the unlawful order on account that it was in violation of the law. It follows that the court a quo was correct in dismissing the appellant’s appeal. For that reason, the appeal can only fail. Costs follow the result.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

GWAUNZA DCJ				I agree

MAVANGIRA JA				I agree

Machinga Mutandwa, the appellant’s legal practitioners.

Marume & Furidzo, the respondent’s legal practitioners.