Africa Gaming Private Limited v Michael Chopamba & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT
NO.LC/H/301/24 HARARE, 16 MARCH, 2023
CASE NO. LC/H/589/22
AND 01 SEPTEMBER 2023
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IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO.LC/H/301/24 HARARE, 16 MARCH, 2023	CASE NO. LC/H/589/22 AND 01 SEPTEMBER 2023

AFRICA GAMING PRIVATE LIMITED	APPELLANT

And

MICHAEL CHOPAMBA	1ST RESPONDENT

TICHAFARA VIRIRI	2ND RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant	: Mr L. Machacha, Human Resources Officer For the 1st Respondent  :  In person

For the 2nd Respondent : No appearance

CHIVIZHE, J:

This is an appeal against a determination of the Designated Agent for the National Employment Council for Commercial Sectors, Honourable Tichafara Viriri N.O. handed down on 12th of May, 2022. The appeal is opposed by 1st respondent. 2nd respondent having being cited as nominal respondent has not filed any papers. He also made no appearance before the court.

BACKGROUND FACTS

The 1st respondent is a former employee of the appellant. He was employed as a Purchase Officer. Following an audit the appellant discovered that 1st respondent hand caused losses to the company in the amount of US$314 through favouring one client, Champions, a supplier of motor spares. Initially appellant had referred the matter to the police and then acing on advice opted to

conduct disciplinary process. The 1st respondent thereafter started absconding from work from the 14th of August, 2021. The appellant then levelled charges against 1st respondent of absenteeism; (1 count) unsatisfactory work performance (4 counts). A disciplinary hearing was convened in January, 2022 and the 1st respondent was notified of it through mail sent to his given address in the contract of employment. The 1st respondent did not appear at the hearing. The hearing proceeded and 1st respondent was found guilty of all the charges. A penalty of dismissal was subsequently imposed and the dismissal letter was forwarded to the same address. No appeal was noted by 1st respondent against his conviction and the penalty so imposed.

DESIGNTED AGENT DETERMINATION

The matter was referred by the 1st respondent to the NEC under the provisions of Section 63(3) (a) of the Labour Act [Cap 28:01]. The issue in dispute was the non-payment of salaries. Both parties appeared for the first hearing and made submissions. 1st respondent as claimant submitted that he had been employed by appellant from 5th May, 2014 to 15th August, 2021. The appellant had referred a case to the police alleging that audit had revealed a loss suffered as a result of his actions. The police refused to handle the matter as they regarded it as purely administrative issue. 1st respondent submitted that Human Resources Department had thereafter asked him not to report to work. He was neither officially suspended or charged with misconduct.

The 1st respondent was claiming before the Designated Agent the following; July 2021 to August 2021 (salary)	ZWL  30 000.00

September 2021 to March 2022 ($40 000 salary)	ZWL 280 000.00

Gratuity (7 years x 9% x $40 000)	ZWL  25 000.00

CILL (103 days accumulated)	ZWL 37 333.00

Cumulative Total	ZWL472 533.00

The Designated Agent recorded in his award appellant did not make any submissions. He stated that appellant waived his right to be heard.

In his analysis of evidence the Designated Agent found the appellant liable to pay the whole amount as claimed. By making reference to the provisions in S.I. 45 of 1993 Section 9 (1) he found appellant was liable to pay 1st respondent salaries from July 221 to March 2022. By also making reference to Section 31(1) of the same instrument he also found appellant liable to pay 1st respondent gratuity as claimed. On the claim for cash in lieu of leave he awarded the claim on the

basis of Section 19(2) of S.I. 45 of 1993. In his final determination he awarded the total of

ZWL$472 533.00 to 1st respondent and the amount was payable by the 28th of May, 2022.

THE APPEAL

The appellant was aggrieved by the awarded handed down by the Designated Agent and noted the present appeal. The appeal is premised on the following grounds of appeal;

Failure by 1st respondent to serve appellant’s Human Resources Manager with the written submission

with figures which were used by 2nd respondent in coming up with determination.

Fundamental dishonesty through grossly exaggerating salary figures and CILL days as claimed by 1st

respondent.

The appellant has further submitted that what is really owed to 1st  respondent is the following amounts;

Cumulative Total	ZWL 83 978.00

The appellant was also claiming to be awarded in a set off the amount that 1st respondent was owing the company i.e. US$314.00 for the loss suffered as a result of his under hand conduct as revealed by the audit report. During the course of hearing before the court, Mr Machacha, the appellant representative indicated that appellant was no longer pursuing that amount.

PARTIES SUBMISSIONS

Before the court, Mr Machacha, submitted, that appellant was challenging the amount awarded by 2nd respondent for one simple reason. That the salary used to calculate the terminal benefits was wrong. 1st respondent was earning ZWL$15 000 per month as evidenced by salary slip attached as Annexure E on page 59. He also submitted that they were not made aware of the document that was placed before the Designated Agent which resulted in the bloated award. Had they been served with it made they would have made appropriate comments and suggestions to the Designated Agent. The award had also been issued in appellant’s absence on 12th March, 2022.

Mr Machacha submitted that the award had to be varied to reflect the correct position especially on the salary rate used.

Mr Chopamba, the 1st respondent, in counter, submitted that the award was correct. He disputed that the figures claimed had not been referred to appellant. He made reference to Annexure A of his submissions which showed that appellant was indeed served with his claim.

On the issue of salary rate he submitted that he had two salaries one pegged in ZWL dollars

$19 000 per month and another in USD dollars i.e. $120 per month. The amount of $4000 before the Designated Agent was the cumulative salary for the two currencies. The United States Dollars dollar component however was not reflected on payslip. He submitted that Annexure ‘F’ (p 85) to his papers was proof in support of this position.

Mr Chopamba further submitted that his claim had extended to the date on which he appeared before the Designated Agent as it was his view that he had been unlawfully terminated. He submitted that he had not been served with letter of termination in accordance with the requirement under Section 7(3) (2) of the contract requiring parties to use prepaid registered post in serving another party. In this case the appellant had used ordinary mail resulting in him defaulting at the hearing which ultimately resulted in his dismissal from employment. He further submitted that the mail had also been posted on the 2nd February, 2021 for a hearing convened on 1st February, 2021. This was apparent from page 105 of the record and Annexure ‘C’ to his papers. His submission was therefore that had been unlawfully terminated, the termination was therefore null and void. The court had to therefore consider his claims to date as he still had not received the termination letter.

Mr Machacha, in rebuttal, submitted that, contrary to 1st respondent’s submission, there was no proof of service of the document outlining 1st respondent claims against the appellant. The evidence tendered by 1st respondent in support of his submissions on service was controverted by the person alleged to have been served on page 64 where he contended that he never received the document on behalf of Human Resources Department. In regards the evidence tendered of a purported workmate in the same grade with 1st respondent who was alleging that they were also earning in United States Dollars, Mr Machacha submitted that the evidence had to be disregarded by the court as there is no name included on the document and no proof had been tendered to show he was in same grade as 1st respondent. Mr Machacha confirmed that indeed the company had in

March 2022 introduced a United States Dollars component to salaries. He further submitted that the company was willing on humanitarian grounds to award to 1st respondent the two months’ salary for February and March 2022 over and above the entitlements as presented by applicant in the proceedings.

Mr Machacha also disputed the contention by 1st respondent that he remained an employee. His view was that 1st  respondent was lawfully terminated following the disciplinary process at which he had defaulted. This could be evidenced by the fact that before the Designated Agent 1st respondent had not raised the issue of invalid disciplinary proceedings. He also had not raised an appeal against the ruling by Disciplinary Committee. There was also evidence on record to show notification of the disciplinary hearing was posted on 26th of January, 2021 seven (7) days before hearing as provided by the relevant Code of Conduct. The delay could have been at the post office if indeed 1st respondent received the notification late. The issue of unprocedural termination clearly had no basis therefore.

The court also raised an issue with the parties as to who had the onus to discharge before the Designated Agent in view of the nature of claims referred to him. Mr Machacha submitted that the employer had a duty if the employer was indeed paying salaries in United States Dollars but in this case the employer was not paying 1st respondent in US Dollars. His salary was as per papers filed of record. Mr Chopamba’s view was that he had the onus at law to prove the claims made but that he was hindered from accessing any documentation as he had already left employment. He insisted that his claim went beyond even March 2022. He was also entitled to the USD salary as tendered by appellant representative as he had not been formally terminated. He requested the court to determine the issue as to when he was officially terminated based on the evidence in the record and the submissions made.

EVALUATION

After considering submissions by the parties and upon perusal of the record it is very clear that this appeal ought to succeed. The appellant has raised basically two issues for determination. Although both grounds are inelegantly cast, the appellant being a self-actor, it is apparent from the first ground appellant is alleging a misdirection on the part of the Designated Agent in arriving at an award based on 2nd respondent’s submissions alone which had not been verified by appellant.

The appellant is in other words alleging a procedural irregularity in that it was not accorded the right to be heard before a decision was taken.

The appellant has extended a further argument that the figures as presented by the 1st respondent were in fact exaggerated due to an inflated salary rate. The appellant alleges that 1st respondent presented a claim of a salary of ZWL$40 000 which was not substantiated. The USD dollar component was also not justified before the Designated Agent. 2nd respondent is also alleged to have exaggerated the CILL days claimed. The appellant’s position therefore is that the overall claim as presented before the Designated Agent is wrong and ought to be varied by this court.

The issues raised by the appellant on the second ground related to; what was the effective date of termination of employment? What was the correct amount of the 1st respondent’s salary? It is clear from the Designated Agent award that he did not seek to establish first when was the effective date of termination in order for him to determine to what date the arrear salaries were payable.

His award actually exposes his confusion over the issue under his, ‘Analysis of Evidence of Argument’ section he states as his first finding that;

“It is common cause that the parties in this dispute were in any employment relationship. It ended when the employer instructed the employee not to report to work”.

In the very next sentence he then contradicts his earlier position and states as follows;

“In terms of the claim that the claimant was not paid his salary from July 2021 to March 2022, this is valid because the two had been in an employment relationship and therefore the employee was supposed to be paid his remuneration for the work offered”.

The Designated Agent clearly misdirected himself at law in failing to arrive at the effective date of termination of employment. The appellant contention before this court is that the 1st respondent was terminated following a disciplinary process convened by it against 1st respondent which process culminated in 1st respondent’s dismissal from employment.

The 1st respondent has sought to challenge that position before this court on the basis that he did not receive notification of the hearing. He submits he was not lawfully terminated. He has even suggested his claim therefore extends to beyond March 2022 awarded by the Designated Agent to the present date. It is important to underline that this court is sitting as an appeal court. It can therefore only determine issues that were before the Designated Agent. The issue of an

unlawful termination was not placed before the Designated Agent. The award reflects the issue in dispute as ‘non-payment of salaries’. The issue of unlawful termination is therefore improperly raised before this court. It is also correct as submitted by appellant that 1st respondent having failed to note an appeal against his conviction and penalty as imposed by the Disciplinary Committee the finding/penalty imposed by the Committee remains extant. The appellant remains dismissed from employment. It is the finding of this court therefore that the effective date of termination is the date on which 1st respondent was dismissed from employment i.e. 18th of February, 2022.

The next issue is that of the correct salary rate. The appellant submits that 1st respondent placed an exaggerated claim before the Designated Agent and that it was not accorded an opportunity to be heard on the claim. The Designated Agent in the award recorded against “Respondent’s submissions” that the respondent did not make any submissions. The appellant was said to have waived his right to be heard. As indicated earlier the 2nd respondent did not respond to the appeal neither did he appear before this court. It is not clear the import of his statement. Was appellant served with 1st respondent’s claim document and did not comment? Was appellant served with notification to attend the second hearing before the Designated Agent and defaulted? The appellant contends it was never served with the document/claim as presented by 1st respondent before the Designated Agent. 1st respondent in counter submits that appellant was indeed served as per his Annexure ‘A’ to his paper. On the basis of the evidence as tendered by 1st respondent, the court finds that appellant was indeed served for the second hearing before the Designated Agent.

It seems clear to the court that even if the appellant was in default either of appearance or default of filing a response to the claim as made by the 1st respondent, the Designated Agent was however duty bound to ensure that the claims as placed before him were correct. He had to make sure the claims were supported by documentary evidence before assessing the cumulative amount due to 1st respondent. It is after all the position at law that quantification of damages is evidentiary based. See GDC Hauliers vs. Zakeyo SC 32/13.

It is clear from a perusal of the award that there was no evidence placed before Designated Agent to justify the $40 000.00 salary that was placed before him. There was also no evidence tendered to justify 103 days CILL. It is therefore clear as submitted by the appellant that the claim

before the Designated Agent was grossly inflated due to the exaggerated salary. The award clearly cannot stand for that reason.

In proceedings before this court 1st respondent conceded that his real salary was pegged at

$15 000.00 as per his last salary slip tendered by the appellant. He was however also claiming a United State Dollars component which he submitted was not captured in his contract but for which he presented evidence before this court in support of that claim. The document marked Annexure ‘F’ is supposed to be the evidence of a workmate who was on the same grade with him and who advised him of the introduction of United State Dollars component to the salary. Upon perusal of the Annexure ‘F’ it is clear to the court that as submitted by appellant that document cannot be relied upon to justify the United State Dollars component. Firstly, it does not show who the employee is i.e. his identity particulars. Secondly, it does not show that he was in the same grade as 1st respondent. It is also clear to the court in any event the date of the alleged conversation held between 1st respondent and the said employee is on 12 April, 2022 which is a date well after the date of termination of contract. 1st respondent was clearly not entitled to claim the United States Dollars component. Mr Machacha, for the appellant, however in the course of hearing, before this court indicated that the employer was prepared on a humanitarian basis to award to 1st respondent two months’ salary in United State Dollars over and above the amount he was entitled to be awarded before the Designated Agent.

FINDINGS

After considering the submissions as made by the parties the evidence in the record it is the court’s findings that the appeal clearly stands to be allowed. It is clear that the Designated Agent in this case misdirected himself in two material respects- firstly, by not according to appellant it’s right to be heard on the claims as made by the 1st respondent. Secondly, by assessing the claims in the absence of proper evidence placed before him. This is in particular to the salary rate. With regards to the leave days the 1st respondent has however justified the claim before this court and court finds he was entitled to 103 days leave. In regards the two other claims i.e. salary arrears/gratuity these have necessarily to be set aside and recalculated on the basis of a salary rate of $15 000 for which proof has been tendered before this court. The 1st respondent claim for USD salary is clearly not available to him as he was earning in Zimbabwe Dollars as from 2019 to June 2021. The claim would also have no basis in light of Statutory Instrument 33 of 2019. The

appellant having also tendered in the proceedings before this court a token of appreciation $240 USD that amount is also awarded to 1st respondent.

In the result it is hereby ordered as follows;

The appeal succeeds.

The award by Designated Agent Vhiriri N.O dated 12th May 2022 be and is hereby set aside and substituted with an award for the following;

Salary arrears: - July 2021 to March 2022 $15 000 x 8 months = ZWL$120 000.

Gratuity 7 years x 9% x $15 000 = ZWL $9450.00

CILL (103 days accumulated) = ZWL 64 834.24

A token of appreciation of USD$120 x 2 months tendered = USD $240

Gross Total Award = ZWL$ 194 284.24 plus USD$ 240.

The appellant is directed to pay the 1st respondent the amount awarded within 30 days of the date of this order.