Denjey Enterprises (Private) Limited V Nkosinati Sinini

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BIN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/145/25
HELD AT HARARE 17TH JANUARY 2025
CASE NO. LC/H/1177/24
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BIN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/145/25 HELD AT HARARE 17TH JANUARY 2025		CASE NO. LC/H/1177/24 AND

In the matter between

DENJEY ENTERPRISES (PRIVATE) LIMITED	APPELLANT

And

NKOSINATI SININI	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE, JUDGE

FOR THE APPELLANT :P. GOMO FOR THE RESPONDENT:IN PERSON

MAKAMURE J:

This is a judgment on an appeal and cross appeal arising from a determination by an arbitrator. The following are the grounds of appeal:

‘1. The Arbitrator grossly erred and misdirected herself on the law by misconstruing the concept of prescription of labour disputes in terms of section 94 of the Act which led her to dismiss the point in limine of prescription against the claim raised by the Appellant.

The Arbitrator grossly erred and misdirected herself by awarding fuel where the Appellant had clearly indicated that the fuel was included on the payments made to the Respondent on a monthly basis, which payments were made at interbank rate in local currency and where there was no evidence of such allowance having been due.

The Arbitrator grossly erred and misdirected herself on the law by misconstruing section125 of the Labour Act to mean that the employer is under an obligation to assist the employee in proving his claim.

The arbitrator grossly erred and misdirected herself by granting cash in lieu of 25 leave days where no evidence was placed before her to prove such a claim and applied the wrong salary scale in defiance of evidence that was led before her.

The decision of the Arbitrator is grossly irregular in its defiance of logic that no other arbitrator faced with the same facts would have arrived at such a decision.’

Preliminary Issue

At the commencement of the hearing a preliminary point was taken on behalf of the appellant. The point was to the effect that the respondent did not comply with provisions of r19 of the Rules of this Court 2017, in that there was no affidavit attached to Form LC2. The respondent conceded to the absence of an affidavit but indicated that the information which was contained in the document submitted contained everything that an affidavit would have contained. The respondent submitted that under the circumstances the non-compliance was not fatal. In response Mr Gomo who appeared on behalf of the appellant submitted that there was non-compliance which the respondent conceded to and therefore the appeal should be granted as it is unopposed.

Form LC2 provides that ‘the attached affidavit shall be used.’ (My emphasis). This is peremptory. The respondent was obliged to comply with that provision but did not. The fact that he supplied the appropriate information without compliance with the rules cannot excuse him. It is trite that where rules of court are mandatory, they should be complied with. Where a pleading is not complied with it is fatally defective. Fungai Munyorovi v Sakonda HH467-

21. If the Court were to allow the document submitted by the respondent, then any litigant would also use the same excuse and this would render the rules useless. That is undesirable. Rules are there for the proper running of courts. Delta Beverages (Private) Limited v Zimbabwe Revenue Authority SC9/19. The absence of an affidavit means that the Notice of Response is not in compliance with the Rules. There is merit in the preliminary point raised. Under the circumstances therefore, the appeal is not opposed.

The Preliminary point is accordingly upheld.

The Appeal

Having found that there is no opposition, it does not mean that the Court rubber stamps the unopposed matter. The court must consider whether or not its decision will be equitable without having considered the merits of the matter. I am of the view that it would not be equitable not to consider the merits. It is therefore necessary for merits of the appeal to be considered.

It is common cause that the respondent is a former employee of the appellant. He was employed with effect from August 2020. Following separation of the parties on 31st December 2022 the respondent raised allegations of non-payment of terminal benefits. The matter was conciliated upon and a certificate of no settlement was issued for purposes of arbitration. The terms of reference for the Arbitrator were: (i) Whether or not the claimant is owed any terminal benefits;(ii) Whether or not the claimant is owed 600litres of fuel and (iii) ‘To provide the remedy thereof’. After considering what the parties presented, the Arbitrator found that a portion of the employee’s claim had prescribed. The Arbitrator found that the employee was owed terminal benefits in the form of cash in lieu of leave days and fuel benefit and therefore made an award ordering the appellant to pay the respondent the following:

‘30 litres fuel for ten months at the rate of US$1.50 amounting to US$450.00.

Cash in lieu of leave days, 25 days amounting to US$393.25.’

These are factual findings which this Court is not at liberty to interfere with. It would only interfere where the findings were outrageous to the extent of defying logic.

During the course of the proceedings s12 and s125 of the Labour Act Chapter 28:01 ( the Act) were , among other authorities referred to . These sections provide as follows respectively:

‘ 12 Duration, particulars and termination of employment contract

Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars—

the name and address of the employer;

the period of time, if limited, for which the employee is engaged;

the terms of probation, if any;

the terms of any employment code;

particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;

particulars of the benefits receivable in the event of sickness or pregnancy;

hours of work;

particulars of any bonus or incentive production scheme;

particulars of vacation leave and vacation pay;

particulars of any other benefits provided under the contract of employment.

A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time:

Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.

(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service,

shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as

is—

…’

And s125 provides as follows :

‘ 125 Records to be kept by employers, principals and contractors

Every employer upon whom any agreement, determination or regulation is binding under this Act in relation to remuneration to be paid, time to be worked or such other particulars as may be prescribed shall at all times keep, in respect of all persons employed by him, records of the remuneration paid, of the time worked and of those other particulars.

The form and manner in which the records referred to in subsection (1) shall be kept as prescribed:

Provided that the Registrar may in writing authorize the keeping of such records in some other form if the records so kept will, in his opinion, enable a labour officer or designated agent to ascertain therefrom the required particulars.

Whenever any agreement, determination or regulation regulates the rates at which or the principles upon which payment shall be made by a principal or contractor to any person to whom any work is given out on contract by that principal or contractor, every such principal or contractor shall at all times keep records of payments made by him to any person to whom he has so given out work on contract and of such other particulars as may be prescribed, and every such person to whom work has so been given out on contract shall at all times keep records of payments received by him from any such principal or contractor in respect of such work and such other particulars as may be prescribed.

Every person who is or has been an employer or principal or contractor, as the case may be, shall retain the records referred to in subsections (1) and (3) for a period of three years and shall produce these records on demand made at any time during that period by—

a labour officer; or

a designated agent acting within the scope of his authority, in terms of subsection (3) of section sixty-three.

If an employer fails to keep or retain the records referred to in this section or falsifies any such record, it shall be presumed for the purposes of this Act that every employee employed by him during the relevant period was engaged throughout that period for not less than the ordinary hours of work applicable to that employee in terms of any agreement, determination or regulation under this Act.

Where it is proved that any statement or entry contained in any record is false, the person required in terms of this section to keep that record shall be presumed, until the contrary is proved, wilfully to have falsified that record.’(My underlining for emphasis).

The arbitral award shows that the question of prescription as provided for in s94 of the Act were taken into account when the arbitral award was made. S94 of the Act provides as follows:

.

‘94 Prescription of disputes

Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

it is referred to him; or

has otherwise come to his attention;

within two years from the date when the dispute or unfair labour practice first arose.

Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed to have first arisen on the date when—

the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

the party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.’

The Arbitrator duly considered the question of prescription and awarded only a portion of the period or claim which had not prescribed. Equally provisions of s125 of the Act were also considered. The provisions make it mandatory for an employer to keep employment records which show the terms of the employment contract between the parties. When requested to produce such records the employer is obliged to do so. In the present matter when the employer was requested to produce the records of employment it did not comply with the request. This is obviously not proper and appears to be contemptuous of the provisions of the Act. Considering the terms of reference which the Arbitrator was seized with, it appears clear that the Arbitrator found that the respondent was owed terminal benefits but only for the period where the claim had not prescribed. It is also clear that the appellant did not furnish the Arbitrator with the employment documents. As a result, the presumption in s125 of the Act that where the employer failed to produce records of employment, the version of the employee with respect to the earnings claimed is accepted as true, was invoked.

[8]A look at the award shows that the award was in fact in favour of the appellant. Thus, grounds 1and 3 which relate to misconstruing s94 and s125 of the Act respectively have no merit. The Arbitrator correctly interpreted the said sections. The second ground refers to payment of the fuel having been made. There was no proof produced before the Arbitrator that such payment was made. If the fuel was not paid for ,then the respondent must be compensated accordingly. Ground 4 refers to the amount of cash in lieu of leave days which the respondent was granted. The appellant did not produce the records which would have clarified the issue. This means provisions of s125 had to be invoked. Ground 5 is vague. It is not clear as to how exactly the decision was irregular .Authorities have consistently directed litigants to ensure that grounds of appeal be clear and concise. Ground 5 lacks clarity. It cannot stand. S v McNab 1986(2)ZLR; SvJack 1990(2) ZLR 166(SC).

In the case of Musanhi v Mt Darwin Rushinga Co-operative Union 1997 (1) ZLR 120

the court had this to say:

‘I prefer, and commend, the approach of GROSSKOPF JA in Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) where, at 392D-E, the learned JUDGE OF APPEAL remarked:

―It has often been said that determining the incidence of the onus of proof ‗is merely a question of policy and fairness based on experience in the different situations‘. (Wigmore as quoted in Mabaso v Felix 1981 (3) SA 865 (A) at 873C and During NO v Boesak & Anor 1990 (3) SA 661 (A) at 673A). As a matter of fairness and sound judicial policy, it seems reasonable that, where one party has the means of establishing a particular fact and his opponent not, the onus should rather be on the former than on the latter.’(My underlining for emphasis).

The statute requires an employer to keep records and to produce such records when required to do so. In the present matter the appellant being the employer was required to produce the employment records for the respondent. It did not do so. It was argued on behalf of the appellant that the Arbitrator misconstrued s125 of the Act to mean that the employer is under an obligation to assist the employee in proving his claim. A look at the statute simply shows that is makes it mandatory for an employer to keep records in the following words :

‘ (1) Every employer … shall at all times keep, in respect of all persons employed by him, records of the remuneration paid, of the time worked…’(My underlining).

This means that the Arbitrator was following the provisions of the statute and not that they were placing an obligation on the employer to assist the employee to prove his claim. The appellant was simply not in compliance with the requirements of the statute. Its failure to comply with the statute cannot be blamed on the Arbitrator. The appellant had the ability to show whether or not the assertions made by the respondent were true but refrained from doing so. It cannot blame the statute. What this shows is that in the absence of proof that it was compliant with provisions of the Act, an inference must be drawn that the appellant was not compliant. This means that the Arbitrator cannot be faulted for their determination. As already indicated the grounds of appeal have no merit. This means that the appellant failed to prove its case on a balance of probabilities.

view of the foregoing I find that there is no merit in the appeal. The appeal fails.

Accordingly, it is ordered that :

The appeal be and is hereby dismissed with costs.

The Cross-Appeal

The following are the grounds of the cross- appeal:

‘The Arbitrator grossly erred by assuming , without any basis of Law and Evidence that the Contract between the Appellant and Respondent was a Fixed Term Contract.

Based on the wrong conclusion that the contact was a Fixed term contract, the arbitrator erroneously dismissed the payment of Notice and Compensation for Loss of Employment.’

At page 52 of the record there is a letter dated 5 December 2022 from the appellant addressed to the respondent. The letter reads thus:

‘RE: REVIEW OF EMPLOYMENT CONTRACT

This letter serves to inform you that your Contract will be expiring on the 31st December 2022, Denjey will be able to renew your contract for further with 1full month-31st January 2023 (sic).

This is due to the continual high cost of living and the slowing down of business.

Once again thank you for the time you have been with the organisation. All the best in your career. ’

The respondent appears not to have responded to that letter. Had he responded indicating that the agreement between him and the appellant was not one of fixed duration, the Court would have been guided by such response. The respondent refers to a different letter to him from the appellant . This is reflected in his communication(email) with the appellant’s legal practitioners on 18July 2024 where he was asking for ‘the initial letter from Denjey which was written sometime in August 2020’. The respondent’s email to the appellant does not state what was contained in the initial offer letter. This means that what is before the Court is the letter showing that the contract between the parties was one of fixed duration. It is trite that the Labour Court is a creature of statute . It cannot go outside the four corners of the record. Further the terms of reference which guided the Arbitrator did not include the said initial offer letter .It is trite that an arbitrator is bound by the terms of reference before them.

.Maponndera and 55Others v Freda Rebecca Gold Mine Holdings Limited SC81/22. In the result , the Arbitrator could not decide on issues that were outside the terms of reference. This means that there is no merit in the cross appeal.

In view of the foregoing the cross appeal fails.

Accordingly, it is ordered that:

The cross appeal be and is hereby dismissed.

TEMBANI GOMO LAW PRACTICE APPELLANT/RESPONDENT’S LEGAL PRACTITIONERS.