Barbara Geza and 7 Others v Ecolife Enterprises

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/333/2013
HARARE ON 08 JULY & 30 AUGUST, 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE		      JUDGMENT NO. LC/H/333/2013

HARARE ON 08 JULY & 30 AUGUST, 2013                    CASE NO. LC/H/47/12

In the matter between:

BARBARA GEZA AND 7 OTHERS		-		APPLICANTS

And

ECOLIFE ENTERPRISES		-		-		RESPONDENT

Before The Honourable B. T. Chivizhe: President

For Applicants	-	Mr S. Matsvetu (Organising Secretary – Zimbabwe

Federation of Trade Unions ZFTU)

For Respondent	-	Mrs R. Likukuma (Managing Director)

CHIVIZHE B. T.:

The Applicants are former employees of the Respondent.  The Respondent is a registered company engaged in the beverage manufacturing business.  In February, 2011, the Respondent moved premises to the Cold Storage Company premises.  By end of May, 2011 electricity had been disconnected from the premises.  This resulted in reduction of the business by 20%.  The Respondent continued to pay its employees whist awaiting reconnection of electricity supplies.  Electricity was restored in October, 2011 but was then disconnected in June, 2012.  The electricity supplies have not been reconnected to date.

Sometime in October, 2011 Applicant and 7 others approached Zimbabwe Federation of Trade Unions (ZFTU) alleging, inter alia, underpayment of wages, non-payment of transport and housing allowances etc.  Through an agreement reached on 12th February, 2011 between the Applicants as represented by the Trade Union Official from ZFTU and the Respondent, the Respondent resolved to pay all the Applicants a total amount of $4,000 which amount was to be paid in staggered amounts.  The Applicants then received an amount of $1,000 as initial part payment of $4,000 on the same date.  The Applicants thereafter individually signed certificates of settlement signifying receipt of the individual amounts which amounts covered

Underpayments in wages

Leave days

Terminal benefits

Refunds

Overtime

Wage increase.

The certificate of settlement clearly shows that the agreement was in full and final settlement of any claims from the Appellant.  Subsequently the Applicants received the second $1,000 disbursement.

After two disbursements the Applicants then approached the National Employment Council (NEC) for the Soft Drinks Manufacturing Industry claiming that the employer had short changed them and that they had not willingly agreed to the terms of settlement.  The NEC for the Soft Drinks Manufacturing Industry resolved that the Applicants’ claims were unfounded and the parties had mutually settled.  A Certificate of Settlement was consequently concluded on 19 March, 2012 wherein parties agreed to final implementation of the disbursement plan as drawn with ZFTU on 12th November, 2011.  The Respondent was directed to pay the balance of US$2,000 in two instalments the first by the 30th of April, 2012 the second by 31st of June, 2012.  The payments were to be done at NEC offices.

On the 11th of June, 2012 the Applicant lodged the present application for review with the Labour Court seeking to have reviewed the initial agreement that the parties had reached on the 12th of November, 2011.  In attacking those proceedings the Applicants allege gross irregularity in those proceedings.  The Applicants allege that they were not present on the day when the agreement was reached for Respondent to pay $4,000.  It is their submission that the ZFTU Representative had not consulted them in arriving at that agreed amount.  It is Applicant’s further contention that the figure is way below the stipulated wages as laid down in the relevant Collective Bargaining Agreement.  The Applicants are asking the Court, to, in relief, set aside the agreement so reached by the ZFTU Representative and the employer.  The application for review is opposed.

In opposing the application the Respondent contends that the agreement was lawfully entered into by the parties after taking into account the background factors, that, the Respondent had experienced electrical cuts from 2011, that there was consequently a reduction in business and Respondent had liquidity problems.  The parties at the meeting on 12 February, 2011 by mutual settlement resolved to payment of the $4,000 in full and final settlement.  The parties had consequently drawn up a Certificate of Settlement with each Appellant appending his or her signature signifying acceptance of the terms of the agreement.  Each employee had consequently been paid on the same date in line with the agreement part of the agreed amount as the first instalment.  The employees were later paid out a second instalment on some unspecified date.  They were however still to receive the balance of two instalments which had been suspended pending the present action.  Finally it is Respondent’s contention that the Applicants having appended their signatures to the Certificate of Settlement on 12 February, 2011 and having also received two instalments in part payment of the amount, the application clearly has no merit and should be dismissed.

The Applicants in response submitted that the agreement was improperly arrived at.  They allege that they were not present when the agreement was reached by their Trade Union Representative from ZFTU and the employer representative.  They also allege the Respondent did not consult them before agreeing to the settlement.

I find the submission by the Applicants totally untenable.  It is practically impossible that their  Representative would have proceeded to negotiate terms of settlement in their absence and without their recommendation.  Assuming that they were indeed absent in the proceedings why would they have proceeded on the same date to individually append their signatures to the Certificate of Settlement.  The Appellant have not alleged that they were forced to sign the certificate.  If they were not in agreement with the terms of settlement why would they have proceeded to then receive cash in part payment as outlined in the agreement document?  The Respondent’s explanation of events is more in accordance with reason.

The explanation is that the Applicants at the relevant time acting on advice from their erstwhile Trade Union Representative from ZFTU had agreed to mutual settlement of the claims.  They then individually freely appended their signatures to the Certificate of Settlement drawn up thereby signifying their acceptance of the terms of that agreement.  They then received cash in part payment on the same day.  They also received second payment on another day.  Later on after receiving wrong advice from yet another Trade Unionist Representative in the same Union as the first they decided to make a u turn and make what I can only say are ridiculous claims in order to justify setting aside of the initial agreement.  In short they are hoping for a second bite at the cherry.

It is a general principle of our law that a person who signs a contractual document thereby signifies his assent to the contents of that document and if these later on turn out not to be to his liking he has no-one to blame but himself.  The principle is enshrined in the caveat subscripto rule.  I am satisfied that the rule clearly applies to this case.  The Applicants having freely and knowingly signed the initial Certificate of Settlement of 12 February, 2011 cannot turn around and denounce the agreement because it is no longer to their liking.  They are bound and have no-one to blame but themselves.  The application must therefore clearly fail as it has no merit.

It is accordingly ordered as follows;

The application is hereby dismissed with no order as to costs.

The parties are bound by the terms of agreement reached on the 12th of November, 2011.

The Certificate of Settlement consequently issued on 19 March, 2012 is however amended by deletion and substitution of the following;

“(1) The Respondent shall pay the balance of $2,000 as per the agreement of 12th November, 2011 in two equal instalments with the first instalment to be paid by 31st August, 2013 and the second instalment to be paid by 31st of September, 2013.

(2) Such payments are to be processed through the relevant NEC office.”