Bunkeys Injector Services v Lindiwe Gwata

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/256/2014
HARARE, 19 FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/256/2014

HARARE, 19 FEBRUARY 2014 &			  CASE NO LC/H/887/2012

9 MAY 2014

In the matter between:

BUNKEYS INJECTOR SERVICES				APPELLANT

And

LINDIWE GWATA							RESPONDENT

Before The Honourable B S Chidziva	:	Judge

For the Appellant		Ms B Hatinahama  (Legal Practitioner)

For the Respondent        W Murambidza  (Trade Unionist)

CHIDZIVA J:

The appellant is appealing against the arbitral award of Honourable N S Zengeni which was handed down on 20 September 2012. The award states as follows:

“It is not possible to order reinstatement in this case. There has been an intricate link between the social and work life. That being the case it is determined that:

The employer must pay three months wages as damages in lieu of reinstatement.

The employee must be paid her terminal benefits up to the last day she worked 30 May 2012 and her cash in lieu of leave (excluding the ten months of living together) for the period July 2010 to May 2012.

That complainant be paid at the level of Grade 6 for the period July 2010 to May 2012 (excluding 10 months in 2011). The total to be paid is therefore:

Three months wages		$1 098-00

Cash in lieu of leave 35 days	$   588-00

Underpayment of wage               $1 349-00

$3 035-00.”

It is common cause that:

The appellant did not have employment records for the respondent.

The respondent was not charged for the alleged absconding from duty.

There was a love relationship.

The respondent was not paid terminal benefits.

The appellant’s grounds of appeal are that:

The arbitrator erred by making a finding that the respondent had been unfairly dismissed when she had stopped reporting for duty on 30 May 2012 after she had maliciously damaged property belonging to Mr Lawrence Bamba the major shareholder.

The respondent was never formally employed.

The appellant therefore prayed that the arbitral order should be set aside. The respondent on the other hand told the court that:

The respondent was unfairly dismissed and that the appellant should have followed the proper procedure of dismissing the respondent.

The appellant should have charged the respondent with misconduct before dismissing her from employment.

The respondent was employed as a Grade 6 worker by Bunkeys Injection Services.

The respondent therefore maintained that the respondent was unlawfully dismissed.

What is to be decided is whether:

The respondent was unlawfully dismissed or not.

The arbitrator erred by ordering damages only.

The appellant has told the court that the respondent was employed as a cleaner although it failed to produce any records of such employment. The appellant has told the court that the respondent committed an offence by failing to report for duty but did not show any record for a hearing.

In the absence of these records the arbitrator’s finding that the respondent was unfairly dismissed is correct. The arbitrator was correct when he gave the employee the benefit of doubt on the grade that she was employed.

Section 89 (2) of the Labour Act states that:

“In the exercise of its function, the Labour Court may:

In the case of an application made in terms of …. paragraph 11 of subsection 7 of section 93 make an order for any of the following or any appropriate order – Reinstatement or employment in a job provided that:

‘(ii)  	in deciding whether to award damages or reinstatement or employment onus is on the employer to prove that employment relationship is no longer tenable, taking into account the size of the employer, the preference of the employee, the situation in the labour market and any, other relevant factors.’”

From the evidence that is before this court it is very clear that the relationship between the respondent and Mr Bemba the shareholder has soured. The respondent is no longer staying with the appellant. Only the two of them were working at the company and Mr Bamba had made working conditions tough for her. The respondent is no longer prepared to work for the appellant.

It is the duty of the Labour Act as provided in section 2 A “to advance social justice and democracy in the workplace.”  Section 90 of the Labour Act states that:

“… the Labour Court shall act in such a manner as it considers best fitted to do substantial justice and effect and carry out the objects of this Act and for that purpose the Labour Court may give instructions on the course to be pursued which shall be binding on the parties to the proceedings.”

In view of this social justice can only be achieved by upholding the arbitrator’s finding and ruling. This is a small company where the two can no longer work together even though the appellant insists that it’s still possible. Justice can only be done by payment of damages.

Accordingly it is ordered as follows:

That the appeal be and is hereby dismissed with costs.

Mambosasa Legal Practitioners, appellant’s legal practitioners