Felicity Naidoo V Prudence Mpofu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/625/14
HELD AT HARARE 9TH JUNE 2014
CASE NO 
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/625/14

HELD AT HARARE 9TH JUNE 2014			CASE NO LC/H/765/13

& 26TH SEPTEMBER 2014

In the matter between:-

FELICITY NAIDOO					Appellant

And

PRUDENCE MPOFU				Respondent

Before The Honourable R.F. Manyangadze, Judge

For Appellant		T.A. Chiurayi (Legal practitioner)

For Respondent 		T Dhure (Trade Unionist)

MANYANGADZE, J:

This is an appeal against part of an arbitral award issued on

29 August 2013.  In the award, it was ruled that the respondent was not unfairly dismissed.  It was ruled that the respondent be refunded the amount of US$950.00 that was paid to the appellant for the use of water and electricity.

It is against that part of the award that ordered refund of the sum of US$950.00 that this appeal has been noted.

The brief facts of the matter are that the respondent was employed by the appellant as a domestic worker from 1 March 2011 to 15 March 2013, when her contract was terminated.  The respondent stayed on appellant’s premises with her 4 year old child and her husband, and later with a baby born in November 2011.

It is the circumstances surrounding the respondent’s stay with her husband that is the subject of this appeal.  According to the appellant, the husband entered into an agreement with her, in terms of which he was allowed to stay on her premises on condition he supplemented the water and electricity bills.  This was a separate agreement between appellant and respondent’s husband, who was gainfully employed.  The US$950.00 is the aggregate amount from the  monthly payments the husband was making as his contribution towards the water and electricity expenses.  The appellant explained that this was a compromise arrangement she made with the respondent’s husband in order to alleviate her expanses.  No deductions at any time were made from the respondent’s salary, which was US$120.00 per month.

The respondent denied that such an agreement was entered into between her husband and the appellant.  The appellant unlawfully made her pay for water and electricity, when she was entitled to free use of these facilities, as a domestic worker who was resident on appellant’s premises.

A reading of the arbitral award shows that the arbitrator based her decision on a finding that the agreement entered into between the appellant and respondent’s husband was unlawful.  Though she remarked that the said agreement was not in writing, she did not make a definitive finding of fact that the alleged agreement was non-existent.  She granted the respondent’s claim on the basis that the agreement in question was an unlawful one.  The relevant portion of the arbitral award reads:

“It is an infringement of the employee’s right to family and privacy and very inhuman to say the least for the employer to enter into such an illegal and unlawful agreement with the spouse of the claimant.  The benefits that claimant was entitled to are not in any way described solely as for her own excluding the children and the spouse.  The choice is for the employee to enjoy the benefits with her family or exclude them.”

This matter will therefore have to be resolved on this legal point.  The

issue is whether or not the agreement the appellant entered into with the respondent’s husband was a lawful one, and whether it constituted an unfair labour practice.

The appellant referred the court to statutory provisions dealing with accommodation for domestic workers.  The relevant provisions are found in section 2 of the Labour Relations (Domestic Workers) Employment (Amendment) Regulations, Statutory Instrument 161 of 2003, which reads:

“The Labour Relations (Domestic Workers) Employment Regulations, 1992, published in Statutory Instrument 377 of 1992 (hereinafter called “the principal regulations”), is amended by the repeal of section 6 and the substitution of-

“Accommodation, transport, light and fuel

6. 	 A domestic worker-

a)	who does not reside on the premises of his employer shall be entitled to the minimum allowances specified in the Second Schedule.

b)	who reside on the premises of his employer shall be entitled to free lodging, free water for basic domestic needs in or about the area of the premises, free lights and free fuel for cooking or, if no lights or fuel are provided, to the minimum allowances specified in the Second Schedule in respect of lights and fuel for cooking.”

Reference was further made to the definition of a domestic worker, which is found in section 3 of the Labour Relations (Domestic Workers) Employment Regulations, Statutory Instrument 377 of 1992.  A domestic worker is defined as;

“a person employed in any private household to render services as a yard/garden worker, cook/housekeeper irrespective of whether or not the place of employment is in an urban or rural area.”

The appellant contended that the entitlement to free water and

electricity is confined to the domestic worker, as defined in the above provisions.  This is not extended to anyone else.  Appellant further contended that the respondent was not obliged to stay on appellant’s premises.  She could have opted to stay off the premises, in which case she would be entitled to some allowances to cover water and electricity.  The appellant was therefore not legally obliged to stay with the respondent.  When the respondent opted to be in residence at her workplace, she then became entitled to free use of the facilities mentioned.  The entitlement to accommodation and other amenities is not by law extended to her spouse.  The husband negotiated with the appellant, who agreed that he joins respondent on the premises.  The agreement was that the husband would contribute towards water and electricity expenses, as already indicated.

It seems to me the agreement between the appellant and the respondent’s husband fell outside the employment relationship between the appellant and the respondent.  He met the expenses in question from his own income. If he was also employed as a cook or gardener, the provisions of the law cited would then apply to him.

The provisions looked at are clear on the rights and obligations existing between the appellant and the respondent, as employer and employee.  To extend these to the compromise arrangement done between appellant and respondent’s husband would, in my view, be overstretching the scope and application of the law.  There could, understandably, be issues of unfairness arising out of this arrangement, such as how the husband’s contribution was calculated.

It is up to the respondent’s husband to approach ordinary civil courts with such issues.  The appellant expressed it this way in her Heads of Argument, paragraph 3.16.

“If the respondent’s husband is of the opinion that he has a genuine claim against the appellant, it is he who should bring it given that he entered into the agreement and paid the relevant monies.  It was thus improper for the arbitrator to explore beyond the arena and look into agreements which did not involve the parties disputing before the tribunal.”

In the circumstances, the claim emanating from the agreement in question is not legally sustainable.  The arbitrator, it appears, looked at the issue from a moral and humanitarian perspective.  The excerpt quoted from her judgment, supra, reflects that.  To some, what the appellant did may raise a moral stink.  It seems to have done so to the arbitrator, who described the agreement as “very inhuman.”  She overlooked the fact that she was considering rights and obligations created between persons with full contractual capacity.  If the agreement has, for any reason, to be vitiated, it is up to the prejudiced party to take the necessary legal action.  The respondent cannot properly take such action as the agreement was concluded between other persons with full contractual capacity.  The arbitral award cannot be upheld in the circumstances.

In the result, it is ordered that

The appeal be and is hereby allowed.

The portion of the arbitral award ordering the appellant to pay the sum of US$950.00 to the respondent be and is hereby set aside.

Each party bears her own costs.

Coghlan, Welsh & Guest, appellant’s legal practitioners