Bermud Transport (Pvt) Ltd v A Gotosa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/228/14
HELD AT HARARE 25TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/228/14

HELD AT HARARE 25TH FEBRUARY 2014		CASE NO LC/H/135/13

& 11TH APRIL 2014

In the matter between:-

BERMUD TRANSPORT (PVT) LTD			Appellant

And

A GOTOSA							Respondent

Before The Honourable E Muchawa, Judge

For Appellant		M.F. Makore (Legal Practitioner)

For Respondent		C Chigwada (Trade Unionist)

MUCHAWA, J:

This is an appeal against on arbitral award which ordered appellant to pay respondent $3 082.35 in underpaid wages, unpaid wages, cash in lieu of leave and housing allowance.

It is common cause that respondent was employed as a conductor in February 2010 at a wage of USD120.  This was a verbal contract which was terminated in December 2010 on account of what one party calls a misconduct and the other a misunderstanding.  It is agreed that in February 2011 respondent was reengaged on the same salary of USD120.  Whereas appellant claims that respondent was reengaged in the different capacity of a loader, respondent insists he was employed in the same capacity of a conductor.   Respondent  was then dismissed from employment in April 2012 on account of a misconduct.  A labour complaint resulted in the arbitral award in his favour which is the subject of this appeal.

The grounds of appeal are set out as follows:

The Honourable arbitrator misdirected herself on facts which is so unreasonable that no sensible person who applied his mind to the fact would have arrived at such a decision.

The Honourable arbitrator erred at law in concluding that the respondent’s reengagement in a different capacity would mean that he was entitled to be paid salary or wages in the grade he was before reengagement.

Respondent opposed the appeal.  I proceed below to deal with each ground of appeal.

Ground 1

Appellant makes a bare averment that the arbitrator misdirected herself on

the facts in an unreasonable manner that no sensible person who applied their mind to the facts would have reached such a decision.  Respondent correctly responds that by failing to provide the factual finding which is unreasonable, appellant is in fact generally attacking the arbitrator’s person and mind set.

It was only in submissions before me that the factual conclusion was explained to relate to the capacity in which the respondent  was reengaged.

The facts before the arbitrator were verbal claims by both parties of the capacities in which respondent was re-engaged.  None of the parties produced any documentary evidence to back their claim.  What was clear was that the salary remained unchanged at USD120.  Would one fault the arbitrator for concluding, in the absence of any written contract, that the capacity in which, respondent was  employed did not change?  I do not think so.

Appellant rightfully submitted that he who alleges must prove.  Appellant is the one alleging a change in capacity.  In my opinion the onus to prove this rests on appellant.

In the circumstances I do not think appellant has made a case for me to interfere with the factual findings of the arbitrator.  This ground of appeal is therefore dismissed.

Ground 2

It is appellant’s argument that the arbitrator erred in concluding that the respondent’s reengagement in a different capacity would mean that he was to be paid salary or wages in the grade he was before re-engagement.  This argument is based on the allegation that the arbitrator erred by importing the definition of “continuous service” in the Collective Bargaining Agreement: Transport Operating Industry S.I. 152/2001.  According to section 22 thereof

“(1)	Continuous service shall be deemed to broken only by the death, resignation, retirement or discharge of the employee concerned: Provided that an employee who is discharged and re-engaged by the same employer within two months of such discharge shall not be deemed to have broken his continuous service.”

It was the arbitrator’s finding that respondent had been on continuous service in spite of the break in his contract and that he should enjoy the same conditions prior to re-engagement.

The appellant argues that it was wrong to conclude that re-engagement only means re-engagement in the same capacity as an employer is at liberty to re-engage in a different capacity.  I agree with appellant in this argument but hasten to add that in casu appellant failed to prove that the capacity had changed.  This section was only referred to by the arbitrator as further support for the finding already confirmed under grounds 1 of this appeal above.

The rest of appellant’s arguments do not advance his case in the circumstances.

Consequently I find that there is no merit in both grounds of appeal.  I therefore order as follows:

“The appeal being without merit be and is hereby dismissed with costs.  The arbitral award of the 12th February 2013 be and is hereby confirmed.”

Maunga Maanda & Associates, appellant’s legal practitioners