Chatrpril Enterprises Private Limited v Thokozile Manyuka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/54/25
HELD AT HARARE 10 FEBRUARY 2025
CASE NO. LC/H/1241/24
AND 19 FEBRUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 10 FEBRUARY 2025

AND 19 FEBRUARY 2025

IN THE MATTER BETWEEN:

CHATRPRIL ENTERPRISES PRIVATE LIMITED

JUDGMENT NO. LC/H/54/25

CASE NO. LC/H/1241/24

APPELLANT

AND

THOKOZILE MANYUKA	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For theAppellant

For the Respondent

T.S Mawonera

In Person

MURASI J.,

This is an appeal against the determination made by the Designated Agent (D.A) of the National

Employment Council of the Commercials Sector dated 05 November 2024. The appeal is opposed.

The respondent was employed by the appellant as a general worker under a contract of indefinite

duration. The record shows that the relationship between the respondent and the appellant had become strained, which ultimately prompted the respondent to resign from her position with the appellant. Following her resignation, the respondent lodged a claim of underpayment of wages to the D.A., having identified a disparity in pay between herself and other employees engaged in a similar role. The claim was for a period of two years. In his findings, the D.A. referenced the pay grading structure outlined in the Collective Bargaining Agreement (CBA) and ruled in favor of the respondent. Aggrieved by this decision, the appellant has approached this Court for relief on the following grounds:

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GROUNDS OFAPPEAL

1. The Designated Agent erred at law and grossly misdirected himself on the facts, such misdirection amounting to an error of law when he found contrary to the documentary evidence on record that it was not in dispute that the Respondent was employed by the appellant, thus, a claim for underpayment of wages had been met.

2.TheDesignated agent grossly misdirected himself when he made a finding not supported by evidence, that the payroll schedules (mistakenly referred to by the appellant as pay slips) as being fabricated, thereby disregarding relevant evidence in support of the appellant’s defence.

3. The Designated Agent erred at law and grossly misdirected himself in arriving at a finding not sustainable on the facts and evidence on record, that Respondent was being paid at the prevailing bank rate on the date of payment after deductions of monies acknowledged by the Respondent that it should be deducted for goods which went missing in the shop where she was working and the other component was paid in USD.

4. The Designated Agent erred at law and grossly misdirected himself when he proceeded to award unpaid wages to the respondent a thumb suck figure, when he proceeded to award the respondent the amount which she did not claim, and which did not factor in any statutory dues i.e. taxes and levies.

5. A fortiori the designated agent erred at law and grossly misdirected himself when he erroneously determined the matter without inviting the appellant to the hearing, thereby violating the audi partem alterum rule.

PRELIMINARY ISSUE

At the commencement of the proceedings, a preliminary point was raised on behalf of the appellant, which the Court addressed in an ex tempore judgment. The appellant took issue with the fact that the response to the appeal was filed five days out of time and that the respondent had failed to file an application for condonation to rectify this non-compliance with the rules. The appellant argued that, as a result, the Court should consider that no response to the appeal had been filed and the matter should proceed as unopposed.

In response, the respondent acknowledged the tardiness in the filing of her response. She submitted that, despite receiving assistance in compiling the necessary documents, she lacked the financial means to secure legal representation. She appealed to the Court for leniency and forgiveness. The Court took the viewthat although the respondent had evidently failed to comply with the applicable rules, the appellant did not demonstrate any prejudice resulting from this delay. As a result, the

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Court overlooked the non-compliance and directed its attention to the substantive issues at hand. The point in limine was accordingly dismissed.

THE MERITS

Submissions by the parties

Ms. Mawonera, representing the appellant, stated that she would largely abide by the papers filed ofrecord. In motivating the grounds of appeal, the counsel arguedthat an examination of the record revealed that the D.A. reached his conclusion without taking into account essential evidence. It was her contention that the D.A grossly erred in his judgment by neglecting to acknowledge evidence demonstrating that the respondent was employed by Cephmart, not the appellant. Further, it was argued that he failed to take into account the pay schedules provided by the appellant. Ms. Mawonera also pointed out errors in the computations of the amounts awarded to the respondent, contending that the figures had been plucked out of thin air and that there had been an omission of statutory and other deductions.

In response, the respondent indicated her intention to stand by the submissions she had previously made to the D.A and that she fully associated herself with the D.A.’s determination. The Court asked the respondent if the appellant had provided her with pay slips or any records of the payments she received. She responded that there was a document created by the appellant that included the names of all employees and their wages. Additionally, the Court sought to clarify whether she was employed by Cephmart or by the appellant. The respondent stated that she had been employed by the appellant from 2006 to 2024 and only learned of Cephmart during the hearing. She further noted that the only Cephmart she was familiar with was a former colleague who had served as her manager. In response to the respondent's statements, Ms. Mawonera contended that all employees had been transferred from Chatrpril to Cephmart in 2016 and had signed new employment contracts, which the respondent is now disputing.

THE LAWAND ANALYSIS

The law governing appeals is well established. The key factor to consider is whether the determination made by the lower Court or tribunal can be regarded as so unreasonable and outrageous that no other tribunal, confronted with the same facts, would have reached the same

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conclusion. This principle was clearly articulated in the case of ZINWAv Mwoyounotsva 2015 (1) ZLR 935 (S), wherein the Court held that:

“It is settled that anAppellate Court will not interferewith factual findings made by a lower Court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the Court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.”

Further, in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A, the Court provided

additional perspective on this issue and presented the following key points.:

“It is not enough that the Appellate Court considers that if it had been in the position of the Primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary Court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

Considering the principles established by the above authorities, the question that this Court must resolve is whether the decision of the D.A can be deemed so unreasonable as to justify interference by this Court. I will now examine the grounds of appeal submitted by the appellant in this matter. I should point out that during the hearing, the appellant's counsel moved to have the fifth ground of appeal struck off, citing that it had been previously addressed in a review application. This leaves four grounds of appeal for this Court's consideration.

The first ground of appeal raises the issue that the D.A grossly erred and misdirected himself by

concluding that the respondent was employed by the appellant. The appellant contended that all employees of Chatrpril had been transferred to Cephmart in 2016 and had entered into new employment contracts accordingly. However, I note that there was no valid evidence presented to the D.A to support the assertion that the respondent was employed by Cephmart. Furthermore, on page 4 of the record, the parties involved in the dispute before the NEC are identified as ‘Chatrpril and Thokozile Manyuka.’ The appellant stated that it submitted a written response to the respondent's claim of wage underpayment before the D.A. It is perplexing why the appellant would involve itself in this matter if it is not the employer. Why would it take the step of filing a response to the allegations rather than the actual employer? The explanation is evident: an employer-

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employee relationship existed between the parties. The D.A’s conclusion in this regard is sound, as it is substantiated by the evidence presented on a balance of probabilities. The respondent's assertion of being employed by the appellant is evidently more credible than the appellant's account.

Further, it is my view that the arguments regarding this issue can be settled through an analysis of the resignation letter addressed by the respondent to the appellant on 09/10/24, which appears on page 59 of the record. I should point out that this letter was only attached by the appellant subsequent to the hearing before the D.A. However, I am of the view that although the D.A did not have sight of this letter, it serves as compelling evidence of the employer-employee relationship between the appellant and the respondent.

Notably, the letter is date-stamped and signed by the appellant (Chatrpril), and it includes a note

indicating that it was received and acknowledged by the appellant. This clearly demonstrates that the appellant accepted the respondent's resignation, raising the question of how such acceptance could occur if it was not her employer. Certainly, this would have been the opportune time to clarify the issue that the appellant was no longer the respondent’s employer had that been the correct position. Further, the appellant's signature on the letter invokes the caveat subscriptor principle, which stipulates that one cannot evade the implications of their signature. Within the letter, it is stated, “I have worked for this company from 2006 to October 2024…,” a fact which the appellant did not refute but affirmed by appending its signature at the bottom of the letter. It is clear from the foregoing that the claim that the respondent was not the appellant’s employee is without merit. Consequently, the first ground of appeal is dismissed. There was no error in the judgment by the D.A in this regard which would necessitate interference by this Court.

With respect to the second, third, and fourth grounds of appeal, it is my considered view that the appellant cannot seek to challenge the D.A’s findings that arise from these grounds, as such findings were made during the appellant's intentional absence from the hearing proceedings. The appellant made a conscious decision to be absent from the hearing, and the consequences of this absence have been addressed in various legal precedents.

In the case of Zesa Enterprises (Pvt) Limited v Stevawo SC 61-16 at p 5, Malaba DCJ (as he then was) had occasion to comment on the consequences of not attending a hearing. His observations,

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while specifically pertaining to disciplinary hearings, are, in my opinion, equally applicable to the present case. He expressed the following views:

“Where a person wilfully defaults from attending a disciplinary hearing, he or she would have waived the right to challenge the conduct of the proceedings. The rationale was aptly and eloquently captured by ZIYAMBI JA in David Moyo v Rural Electrification Agency SC 4/14…”

In Pacprint (Pvt) Limited v Kumbula SC 67-15, at p 6 Mavangira AJA (as she then was), took the point even further. She stated:

“In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings. By their non-appearance the respondents waived the right to defend themselves. On the other hand, by bringing the application for review they sought to defend themselves. In effect this translates to approbating and reprobating at the same time. The law does not countenance this prevarication. The two positions or stances are mutually exclusive and cannot co-exist.

The respondents having decided not to attend the disciplinary hearings and defend themselves, the court a quo ought not to have granted their application for review. By refusing to attend the hearings the respondents waived their opportunity to assert their rights. They thereby forfeited their right to challenge the findings and procedures of the disciplinary committees.” (The underlining is for emphasis)

In the strength of the aforementioned cases, it is my view that the appellant shot itself in the foot

by not attending the hearing as it consequently waived its right to challenge the findings of fact, the evidence presented, or conclusions drawn which werethe basis forthe D.A's decision. Grounds two, three and four are consequently without merit and I will provide further clarification on this matter.

In ground 2, the D.A aptly noted that the pay schedule documents that had been attached by the appellant as payslips did not fit the definition of apayslip as provided in the Labour Act and section 11 of SI 45 of 1993 which provides that:

“every employer shall keep a record of all employees showing the following particulars a) name and ID particulars, occupation and grade, numberof daily hours worked, rate of wage or salary, amount due of ordinary hours worked, hours of overtime worked, amount due for overtime, gross total wage or salary, deductions, net wage or salary due, signature of employee for receipt of wage or salary where it is paid in cash.”

He proceeded to highlight the inadequacies of the document provided by the appellant when compared to the relevant definition. He also observed its inconsistencies, particularly noting that

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the document indicated deductions to a NEC under which the company is not registered, as well as the absence of an official stamp from the appellant forauthentication. Therespondent contended that the document did not accurately reflect the payments she received, as it listed amounts in local currency, while she maintained that her payments were made in United States dollars. As a result, the document was deemed to be fabricated. The appellant was not present at the hearing to dispute this finding or to present its own evidence, and thus cannot seek to challenge this finding at this point.

Regarding grounds three and four, the D.A correctly found that the respondent, being a general

worker fell in grade 1b and not grade 2 as she had submitted. He then relied on the provisions of the CBA for the computations of the respondent’s dues. He acknowledged that there was no CBA in January and February and considered that in hiscalculations accordingly. He noted that between March and May 2023, the CBA pegged grade 1b at USD 233.00, while the CBA for August established wages at USD 275.00 and the CBA in effect at the time of the hearing set them at USD 305.00. He proceeded to demonstrate how the respondent had been underpaid by comparing the CBA rates with the actual payments made. As a result, he ordered that the respondent be compensated for the difference. I find no fault in his reasoning or final determination. The appellant avers the figures awarded were thumb sucked. However, it is my view that the D.A provided a detailed explanation of his calculations and how he arrived at the figures. Furthermore, as has been established earlier, the appellant's case is further weakened by the fact that it was not present at the hearing, limiting its ability to challenge the findings made.

Regarding the argument advanced by the appellant that the D.A grossly erred by failing to account

fornecessary deductions in his award, Ibelieve this issue is resolved by considering otherstatutory provisions that regulate these deductions. For instance, the Income Tax Act [Chapter 23:06] requires employers to withhold tax from salary or pension payments prior to disbursing the net amount. Given these statutory requirements, it is evident that awards related to salary or wage payments would similarly be subject to such deductions. Therefore, it cannot be deemed a significant misdirection to omit explicit mention of these deductions in an award, as the deductions are canvassed in other statutory provisions.

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DISPOSITION

In consideration of the above, I conclude that the appeal is without merit, as the findings of the D.A cannot be deemed so unreasonable as to justify interference by this Court. His conclusions were derived from the evidence and records presented to him, and they are consistent with the applicable law. The appellant undermined its initial ground of appeal by introducing evidence that contradicts its claims. The remaining three grounds attempt to challenge findings made in the absence of the appellant during the hearings. Legal precedent establishes that a party who is absent from a hearing forfeits the right to contest the outcome. In any case, the D.A’s findings regarding the issues raised in the grounds in question cannot be faulted, as the evidence, when weighed on the balance of probabilities, supports his conclusions. Consequently, the present appeal should be dismissed.

In the result, the Court makes the following Order:

1. The appeal, being devoid of merit, is hereby dismissed.

2. The appellant to meet the respondent’s costs.

Mawonera Attorneys - Appellants Legal Practitioners

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