Farm Flow Equipment v Morgan Chaterera and Clara Tanyanyiwa (N.O)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/84/25
HARARE, 5th JUNE, 2024
CASE NO LC/H/356/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/84/25

HARARE, 5th JUNE, 2024 AND 3RD MARCH ,2025

CASE NO LC/H/356/24

FARM FLOW EQUIPMENT APPELLANT

MORGAN CHATERERA	1ST RESPONDENT

CLARA TANYANYIWA (N.O)	2nd RESPONDENT

Before the Honourable Chivizhe J

For applicant	Mrs R. Chihota (Legal Practitioner) For respondent	(Legal Practitioner)

CHIVIZHE J:

This is an appeal brought in terms of section 98(10) of the Labour Act [Chapter 28:01] against the arbitral award issued per Clara Tanyaniwa N.O. on the 5th day of March 2024. The appeal is opposed.

Grounds of Appeal

The learned Arbitrator erred in law in ordering payment of backpay and benefits from January to April 2023 by the Appellant to the Respondent, when the Respondent was never unfairly dismissed but left on his own with effect from December 2022.

The reasoning of the learned Arbitrator that Respondent’s outstanding wages were to be paid using the lower grade/rate namely grade A1 was unreasonable and contrary to the interest of justice and fairness

The learned Arbitrator erred and misdirected herself in ordering the Appellant to pay $1941 for backpay and outstanding wages calculated in the United States Dollars only. In this respect the learned Arbitrator ought to have ordered such outstanding wages to be payable in local currency at the prevailing interbank rate.

The learned Arbitrator misdirected herself in awarding the Respondent (90) days paid leave when in actual fact his leave days where exhausted by the annual shut down

Wherefore, Appellant prays:

The Arbitrator award to be aside and substituted with the following

Appellant shall pay outstanding wages to the Respondent for 3 months that is October, November and December 2022

Appellant shall pay gratuity to the Respondent pegged at $190 interbank rate

Outstanding wages are payable in local currency at the prevailing interbank rate

1st Respondent shall pay costs of appeal

BACKGROUND FACTS

The 1st respondent was employed by the appellant. Sometime in 2022, the 1st respondent filed a complaint with the National Employment Council alleging non payment of wages. A conciliation was conducted and parties failed to reach a settlement. As a result, they were referred to arbitration in November of 2023. Before the arbitrator, the 1st respondent alleged that parties appeared before a designated agent who issued a determination ordering that the 1st respondent be reinstated back to his position and be paid all his outstanding wages. It was alleged that the appellant did not comply with this determination. The 1st respondent further submitted that he had been reporting for duty and was not given money for transport and hence he ended up resigning.

Per contra, the appellant submitted that the 1st respondent approached one Mr Shonhiwa alleging that he was not getting his wages and was opting to be paid all his wages because his pay was not enough to sustain him and his family. The appellant submitted that the 1st respondent was last been seen at work in December of 2022. The appellant admitted that it had paid the 1st respondent part of the wages leaving some outstanding wages.

After hearing both parties, the arbitrator awarded the 1st respondent outstanding wages and cash in lieu of leave amounting to USD $1941. The arbitrator held that he had arrived at this figure “by using the appellant's lowest grade, as both parties had simply pulled figures out of thin

air."

Aggrieved by the decision by the arbitrator, the appellant has noted the present appeal alleging that the arbitrator erred at law by granting backpay to the 1st respondent who had resigned from work.

1st RESPONDENT’S SUBMISSIONS

In response to the application, the 1st respondent had raised two preliminary points alleging that the notice of appeal was fatally defective because, firstly the appeal was premised on a non-existent section 98(10), secondly that the appellant had not provided the written submissions filed before the arbitrator. The 1st respondent submission was that the appellant had thus not complied with rule 19 (b) of the Labour Court Rules, 2017. On the merits, the 1st respondent argued that the appellant unfairly dismissed him and thus he is entitled to the backpay awarded by the arbitrator.

ISSUES FOR DETERMINATION

The Appellant having abandoned ground number 2 in oral submissions the following issues arise for determination:

Whether or not the notice of appeal is fatally defective.

Whether or not the arbitrator erred in ordering the payment of backpay and benefits to the 1st respondent for unfair dismissal yet the 1st respondent had left on its own in December 2022.

Whether or not the arbitrator erred in ordering the outstanding wages to be in United States Dollars and not in local currency at the prevailing interbank rate of exchange.

Whether or not the arbitrator erred in awarding the 1st respondent 90 (days) paid leave when his leave days had been exhausted by the annual shutdown.

Whether or not the notice of appeal is fatally defective.

After considering submissions by the parties and the rules of this court, the court hereby dismisses both points in limine. The first point is dismissed on the basis that the present appeal is provided for under the Act. Section 98 (10) of the Labour Act [Chapter 28:01] provides as follows:

“(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

On the 2nd point in limine the court finds that the point also lacks merit. Rule 19 (1) (a)

and (b) of the Labour Court Rules which 1st Respondent relies upon provides as follows:

“(1) A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or do the following-

Complete in three copies a notice of appeal in Form LC 4; and

make three copies of any of the documents referred to in subparagraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant- (i) the record of any charge or allegation of misconduct that was served on the appellant, if any;

It is apparent in this case that the Appellant did provide the documents that were in his possession. The rest of the documents were later filed on 11th of April,2024 as they were not in the Appellant’s possession at the material time of filing of the appeal .The record showed on the date of hearing that all the documents were inside the record. The Appellant having sought condonation on the basis of rule 32 (a) of this court rules the condonation is duly extended to the Appellant. In arriving at this position the court is alive to the fact that the 1st Respondent did not show any prejudice suffered as a result of the irregularity. It is also a trite position at law that labour matters should not be dealt with on technicalities. In the case of Dalny Mine v Banda 1999 (1) ZLR 220 SC at 221 theSupreme Court commenting on determining labour matters on technicalities stated as follows:

“As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right.”

This point was further articulated in the case of Nyahuma v Barclays Bank of Zimbabwe SC 67-05 wherein the court held as follows:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

The law is also clear that there must be finality to litigation. McNALLY JA spoke on this in

Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C- E when he said the following:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt- roughly translated, the law will help the vigilant but not the sluggard.”

MERITS

Whether or not the arbitrator erred in ordering the payment of backpay and benefits to the 1st respondent for unfair dismissal yet the 1st respondent had left on its own in December 2022.

The appellant alleges that the arbitrator erred in ordering the payment of backpay and benefits to the 1st respondent on the basis of an unfair dismissal yet the 1st respondent had resigned in December 2022. The appellant alleges that the 1st respondent had just stopped coming to work on his own accord.

Section 12 B (3) of the Labour Act defines unfair dismissal as follows:

(3) An employee is deemed to have been unfairly dismissed—

if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;

if, on termination of an employment contract of fixed duration, the employee—

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.

Per contra, the 1st respondent submits that he stopped going to work because the appellant was not availing transport money to him and that his wages were not enough to sustain his family. It is clear from the reading of the record that the 1st Respondent was claiming non payment of wages. There was a dispute however between the parties as to whether he reported to work after the December shut down. The Arbitrator was clearly alive to the issue of the 1st Respondent status after December 2022, she noted that by the Appellant by his own admission was owing 1st Respondent salary arrears. She also noted that Ist Respondent was paid some amount when he came back in December2022. The appellant however had claimed before her that they had paid all the outstanding amounts. The Arbitrator noted that the Appellant had failed however to show proof of payments made. Most importantly however the Arbitrator noted that the Appellant had not terminated the contract of employment even after the 1st Respondent had disappeared from work. This was the basis on which the Arbitrator had awarded the salaries for the months after December 2022.The issue is whether the Arbitrator grossly erred and misdirected herself on this point. The finding of the court is that the Arbitrator was clearly correct at the conclusion reached. The Appellant did not dispute that it was facing financial challenges, that the1st respondent was being paid in dribs and drabs. The Appellant also did not contest that there was no step taken to lawfully terminate the employment contract when it was clear the 1st Respondent was no longer able to provide work on a day to day basis as a result of nonpayment of his wages by the employer. The first ground of appeal must fail.

Whether or not the reasoning of the arbitrator to calculate the outstanding wages of the 1st respondent using the lowest grade was unreasonable.

The Appellant contended under this ground that the arbitrator erred in calculating the outstanding wages of the 1st respondent using the lowest grade of the appellant. In his determination, the arbitrator admitted that both the appellant and the 1st respondent had submitted claims that they had not proven. It has been held that in quantification matters the courts have to hear and receive evidence in support of claims as placed before the court by the parties. In Redstar Wholesalers v Edmore Mabika SC 52/05 ZIYAMBI JA at p 6 of the cyclostyled judgment said:

“The Labour Court’s approach was wrong and its consequent ruling grossly unreasonable. The Court is not entitled to pluck a figure out of a hat because it is of the view that this figure ‘meets the justice of the case’. Instead, the court is required to hear evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment. The fact that the parties have led insufficient evidence to enable the court to arrive at an informed conclusion does not absolve the court from its duty to utilise its powers in terms of s 89 (2) of the Labour Act by calling evidence in order to resolve the issue.”

In First Mutual Life Assurance Limited v Muzivi 2007 (1) ZLR 325 (S), CHEDA JA at p 328C-D said:

“The suggestion that the employer failed or refused to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue. It is the respondent who had the onus to prove his claims. If he was dismissed when he was in a certain grade, it was for him to tell the court what salary scale applied to him at the time of his dismissal. He could not just claim that he was a certain grade whose salary scale he did not know. This would suggest that he did not know what he was claiming.”

What is clear is that the Arbitrator erred at law by calculating the outstanding wages using the ‘lowest grade’ yet the onus was on the 1st Respondent to prove his grade as well as the salary for that grade. This is on the basis of First Mutual Life vs Muzivi referred to supra. Whilst it is apparent that both parties did not provide any evidence in support of their claims the one with an onus to discharge in this case was the 1st Respondent as the claimant. The Arbitrator decision to utilise the lowest grade was clearly an error at law.

It is important to note however the Appellant Counsel, having made a concession in oral submissions to this ground, that the grade utilised, was, in any event correct, it must follow that

the ground is dismissed. The grade utilised for calculating the outstanding wages by the Arbitrator is therefore correct although she utilised a wrong approach.

Whether or not the arbitrator erred in ordering the outstanding wages to be in United States Dollars and not in local currency at the prevailing interbank rate.

The Arbitrator ordered that the 1st Respondent be paid the outstanding wages in United States dollars and did not provide for an alternative payment of the outstanding wages in the local currency. Statutory Instruments 33 of 2019 provides that the Zimbabwean Dollar is legal tender and thus the Arbitrator should have ordered that such outstanding wages by the Appellant be payable at the prevailing rate of exchange in local currency.

Section 4 of Statutory Instrument 33 of 2019 provides as follows:

“(1) For the purposes of section 44C of the principal Act as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”)—

that the Reserve Bank has, with effect from the effective date, issued an electronic currency called the RTGS Dollar;

that Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C(2) of the principal Act), immediately before the effective date, shall from the effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; and

that such currency shall be legal tender within Zimbabwe from the effective date; and

that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; and

that after the effective date any variance from the opening parity rate shall be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States dollar on a willing-seller willing-buyer basis; and

that every enactment in which an amount is expressed in United States dollars shall, on the and after effective date, be construed as reference to the RTGS dollar, at parity with the United States dollar, that is to say, at a one-to-one rate. “

In the case of Unifreight Africa Limited v Mashinya CCZ 13-24 the court held as follows:

“I am inclined to agree with the position advanced by the respondent and adopted by the court a quo. While the damages payable to the respondent by the applicant were capable of being calculated in United States dollars before the effective date of S.I. 33 of 2019, they had not been so agreed or quantified and therefore expressed in that currency at any time before that date. They only became a liability in the form of a judgment debt, within the contemplation of s 4(1)(d) of S.I. 33 of 2019, after the effective date of 22 February 2019. Consequently, in accordance with s 4(1)(e) of S.I. 33 of 2019, they must be discharged in Zimbabwean dollars, not at the parity rate of one-to-one, but at the interbank rate prevailing at the time of payment.” (my own emphasis)

The Arbitrator clearly erred by calculating the outstanding wages of the 1st Respondent in United States Dollars. On the basis of authorities as referred to supra, the Zimbabwe Dollar is still legal tender in Zimbabwe. The award by the Arbitrator which is sounding in United States dollars ought to be amended to include an option for payment of the outstanding wages in local currency based on the prevailing interbank rate of exchange on the date of payment. The third ground must also be upheld.

Whether or not the arbitrator erred in awarding the 1st respondent 90 (days) paid leave when his leave days had been exhausted by the annual shut down.

The Appellant avers that the 1st Respondent was aware of the annual shutdown and thus the Arbitrator could not award paid leave to the 1st Respondent since these had been exhausted by the annual shutdown. The Appellant further stated that the awarding of the paid leave days would lead to unjust enrichment of the 1st respondent. The 1st Respondent position, per contra, was that whilst ordinarily the onus lies on the claimant employee to prove leave days, in this case he had no access to his employee records which are ordinarily kept by the employer under the provisions of the Act and relevant CBA. The contention is made that reverse onus was therefore on the Appellant to prove how many leave days were due to 1st Respondent. Leave days were different from the days he was entitled to receive by virtue of the annual shut down.

The present appeal succeeds partially. The Arbitrator clearly did not err at law when she

concluded that the 1st Respondent had been unfairly dismissed. She was therefore correct in awarding the 1st Respondent backpay and damages to cover the whole period from October, 2022 to April 2023. The Appellant however, through its prayer in the Notice of Appeal has conceded to owing the 1st Respondent for the three months i.e. October, November, and December 2022. In other words Appellant concedes to owing for the months preceding the annual shutdown. The appellant has also conceded to owing 1st Repondent gratuity in the amount of 196 USD and cash in lieu of leave for 1 month only. The court having found that the Arbitrator was correct in conclusion reached of an unfair dismissal the Appellant ought to pay for the period as covered by the award. The Appellant having conceded to the grade and salary utilized by the Arbitrator it must follow the award reflects the correct outstanding wages due to the 1st respondent save for the two adjustments to be made. The Arbitrator clearly erred in calculating the outstanding wages on the basis of USD dollars contrary to the provisions of law prevailing at the time. The parties in oral hearing conceded that the wages in the sector are paid on the basis of 70% in USD and 30% in ZWL AT THE PREVAILING INTERBANK RATE OF EXCHANGE ON THEDATE

OF PAYMENT. The Arbitrator also erred in awarding 240 x 3 for cash in lieu of leave where no justification was placed before her for 3 months. The Appellant having tendered 1 month salary in lieu of leave, the 1st Respondent is hereby awarded the same.

DISPOSITION

In the result it is ordered as follows.

The appeal be and hereby partially succeeds

Grounds 1 and 2 are dismissed.

The rest of the grounds are upheld.

The award per Clara Tanyanyiwa dated 5th March, 2024 is hereby set aside and substituted

with the following:

“The Appellant shall pay to the 1st Respondent the following outstanding wages:

For three months i.e. October, November and December, 2022 $55, $5 and $105= $165

For January, February, March, April,2023, $205 +$175+$240+$240=$860

For Cash in lieu of leave $240x1	=$240

For gratuity(5Years)	=$196

GRAND TOTAL	= $1461

The total amount of $1461 in paragraph 1 shall be disbursed at the ratio of 70% in USD currency and 30% in ZWL dollars based on the prevailing interbank rate of exchange on the date of payment.

Each party shall bear its own costs.

DUBE, TACHIONA AND TSVANGIRAI	APPELLANT’S LEGAL PRACTITIONERS

GENERAL ENGINEERS, ENGINEERING MAINTENANCE AND CIVIL ENGINEERS WORKER’S UNION	1ST RESPONDENT’S REPRESENTATIVES