Free Grace Academy v Lovemore Munyadziwa

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/142/2016
HARARE, 12 FEBRUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/142/2016

HARARE, 12 FEBRUARY 2016    		         	CASE NO. LC/H/670/14

AND 18 MARCH 2016

In the matter between:-

FREE GRACE ACADEMY				Appellant

And

LOVEMORE MUNYADZIWA			Respondent

Before Honourable P. Muzofa, Judge

For Appellant		T. Chisango  (Principal)

Respondent		In person

MUZOFA, J:

This is an appeal against an arbitration award made in favour of the respondent.  The appellant was ordered to pay respondent a sum of $2 485.80.

The respondent was employed as a principal and a tutor by the appellant.  At some point during the subsistence of the relationship a dispute ensued between the parties.  It was alleged that respondent had opened an educational institution similar to appellant.  Respondent was invited to a hearing and before the completion of the process the respondent referred the matter to a labour officer.  It is unclear what transpired before the labour officer.  However a referral was made to an arbitrator to determine on underpayment of wages.

The arbitrator found that there was no underpayment in respect of salaries but awarded respondent transport allowance, housing allowance, recognition services and cash in lieu of leave.

Dissatisfied by the award the appellant noted an appeal.  Only one ground of appeal was raised, that the arbitrator determined issues outside his terms of reference.

The appellant did not substantiate the ground of appeal in its submissions.  The submissions made before the court had nothing to do with the ground of appeal.  It was submitted for the appellant that the respondent had been paid all the allowances.

Appellant sought to produce two documents, a schedule with a list of receipt numbers and amounts paid titled ‘Receipts for Lovemore Munyadziwa’ and an extract of staff minutes held by appellant.

Respondent objected to the production of the documents firstly because he had not been served with the documents secondly that they were unknown to him and that they were not placed before the arbitrator.

The appellant conceded that the arbitrator made her decision in the absence of the documents.  In so far as that concession was concerned the appellant cannot therefore seek to impugn the arbitrator’s findings based on what was not before her see S.T. Chitanda v United Touring Co. Ltd SC 7/99.

The appellant also submitted that the matter was settled before a Labour Officer.  There was no evidence to support the averment.  It remained a bare allegation.

As stated before the unsubstantiated ground of appeal was that the arbitrator made her determination outside the terms of reference.

The dispute was cited as “The alleged underpayment of wages” the terms of reference were said to be “To determine the amount of underpayment from, May 2012 to December 2013”.

The arbitrator awarded transport allowance, housing allowance, cash in lieu of leave and what was termed a recognition of services.

In its notice of appeal the appellant highlighted that the arbitrator dismissed the claim of underpayment of salaries there was no need to decide on the other allowances.

The appeal hinges on whether wages include allowances, cash in lieu of leave and the recognition of services.

In my view the cash in lieu of leave and the recognition of services were out of place.  These can only be considered in a situation where parties have terminated the contract.  In this case the issue for determination was under payment of wages, the arbitrator was not seized with a case for payments as a result of a termination of contract.  The arbitrator fell into error in respect of the said awards.

The Labour Act does not define wages.  A cue can be taken from the legislature’s use of the term.  Section 13 (1) the Act refers to wages and benefits and section 20 (1) (a) of the Act gives the Minister a discretion to set out minimum wages and benefits in respect of any class of employees.  The twin referral to wages and benefits in my view shows that a wage does not include benefits, which may come in the form of allowances.

John Gragan in Workplace Law 8th Edition, Juta 2005 at page 129 discusses the issue on remuneration or wages.  He notes that such payment is made in return for the service given by an employee.  It does not include gratuities, allowances paid to enable the employee to work like travel allowance.

A wage therefore is a salary only.  In terms of Section 98 (4) of the Act a labour officer shall determine the arbitrator’s terms of reference after consultation with the parties to the dispute.  If the parties intended to resolve an issue in respect of allowances there must have been a term of reference to that effect.  In any event respondent’s issue was not that of underpayment of allowances.  It was non payment of wages.

I agree with the appellant the arbitrator went beyond her terms of reference.

Accordingly the following order is made.

The appeal be and is hereby upheld.