Edson Muringapasi v Savanna Tobacco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/700/2013
HARARE ON 24th SEPTEMBER, 2013
CASE NO. LC/H/459/2013
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/700/2013

HARARE ON 24th SEPTEMBER, 2013			CASE NO. LC/H/459/2013

In the matter between

EDSON MURINGAPASI				–	Appellant

And

SAVANNA TOBACCO				–	Respondent

Before The Honourable B.T. Chivizhe, J.

For the Appellant	: Mr. R. Zimudzai Legal Practitioner)

For the Respondent	: Mr I. Chagonda (Legal Practitioner)

CHIVIZHE, J.

The appeal was noted against the arbitral award handed down on 10thMay 2013.  The Appellant was employed by the Respondent as a Senior Promotions Officer in the Sales Marketing Department. His contract of employment was terminated following a retrenchment exercise which resulted in the Retrenchment Committee issuing a retrenchment certificate on the 20th of December, 2012. The Appellant subsequently referred a complaint of alleged unlawful retrenchment and non-payment of contractual entitlements to conciliation. Upon failure to conciliate the matter was referred to an independent arbitrator. The Arbitrator’s terms of reference were to determine;

Whether or not the claimant was entitled to overtime, 13th cheque, school fees,  free issue of cigarettes allowance and to buy motor vehicle and if so quantum thereof

Determine the appropriate remedy

Before the Arbitrator, the Appellant contended that the agreed retrenchment package excluding overtime, pay, 13th cheque, school fees and free issue of cigarettesand purchasing of the motor vehicle was $22 987.17.  He alleged that after agreeing to the amount he was later called by a Mrs Zhangazha to sign the document reflecting the agreed retrenchment package. He duly signed the document and left it with Mrs Zhangazha. Two days later when he went to collect the document the agreed sum had been fraudulently altered to read $13 787,87. He alleged when he signed the document Mrs Zhangazha had her palm covering the space with figures.

The Appellant before the Arbitrator also claimed entitlement to free issue of cigarettes for December to April 2013 and to purchase the motor vehicle he was using at book value. The Appellant produced his contract of employment in evidence of his claims. He also produced a claim form for over time he had filled in on 12 December 2013 with claims for over time on 7 September 2010, 11 January 2011 and 29 March 2011. The form however was not signed by the Section Head and was not approved by Department Head.

The Respondent before the Arbitrator denied the Appellant’s claims and submitted that the issue of retrenchment having been agreed upon by both parties the issue was not before the Arbitrator. The Arbitrator in his findings concluded that he had no jurisdiction to address the issue of unlawful retrenchment.  Even if it were to be assumed he had jurisdiction his view was that he have still dismissed the claim on the basis of the caveat subscriptio enipto principle. He also after perusing the contract of employment dismissed the rest of Appellant’s claims i.e. for overtime, free issue of cigarettes and the purchase of motor vehicle as not provided in the contract of employment. With respect to the 13th cheque and school fees which were provided for in the contract of employment he observed that these would have been discussed and agreed by the parties at retrenchment. In the event however they had not been so considered or included in the retrenchment package he directed that these should be honoured.

The Appellant was dissatisfied with the award and noted the present appeal. The appeal was noted on the following grounds of appeal.

“1.	The Honourable Arbitrator erred at law by failing to consider that the main issue for determination as per the terms of reference was pertaining unlawful retrenchment and non-payment of contractual benefits.

2.	The Honourable Arbitrator erred at law and fact by failing to consider the fact that the Appellant’s signing of the retrenchment package was induced by misrepresentation as the document did not reflect what the parties orally agreed in retrenchment negotiations.

3.	The Honourable Arbitrator erred at law and fact by failing to consider the fact that the retrenchment process was not finalized as evidenced by the fact that there was no retrenchment certificate in the record.

4.	The Honourable Arbitrator erred at law and fact by failing to consider that the Appellant was entitled to payment for his Five Thousand and Forty Eight (5  048) hours of overtime.

5.	The Honourable Arbitrator erred at law and fact by failing to consider that the Appellant was entitled to purchase the motor vehicle which he was using at book price.

6.	The Honourable Arbitrator erred at law by failing to consider that the Appellant was entitled to payment for leave days.

7.	The Honourable Arbitrator erred at law by failing to consider that the Appellant was entitled to other contractual benefits including the 13th cheque, medical aid and free issue cigarettes.”

The main issue before the Court is whether there was unlawful retrenchment. The Appellant alleges that the Arbitrator erred by failing to consider the fact that Appellant was induced by misrepresentation by the Respondent to sign the retrenchment package.

The agreed amount was $22 987.19 and this agreed to by the parties. The Arbitrator found that he had no jurisdiction to deal with aspect of lawfulness of the retrenchment exercise. In the alternative assuming he had jurisdiction the Appellant was barred on the basis caveat subscripto principle from raising the claim.

I cannot find any …………….. in the Arbitrator’s finding on the issue. It is clear from the papers that the parties agreed to a retrenchment exercise which was done in terms of the Labour Act [Chapter 28:01] resulting in the issuance of a retrenchment certificate on the 20th December 2012. The Appellant if the intention to challenge the process would have sought a review of the decision with the Labour Court. It was not proper for him to have placed before the Arbitrator at that stage. The Appellant had agreed  and was fraudulently tempered with was not substantiated. In any event as found by the Arbitrator the Appellant is bound by the documents in record where he duly signed to accept the retrenchment package. His claim had in the absence of the retrenchment certificate in the record the court should find that the retrenchment process was not finalized cannot stand in the light of the documents he appended his signature in acceptance of the …

The Appellant after clearly accepting retrenchment package appears to be raising new claims. This appears clearly with the claim for 5 048 hours of overtime. The claim apart from being not provided for in his contract of employment has not been substantiated. The Arbitrator in his award correctly found that the claim of overtime as well as for free issue of cigarettes or purchase of motor vehicle not being contractual entitlement deserved to be dismissal. The appeal deserves to be dismissed for want of merit.

Sachikonye Ushe, Appellant’s Legal Practitioners

Atherstone and Cook, Respondent’s Legal Practitioners