Freshpro Distributors v Major Masawi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/04/2016
HARARE, 12 OCTOBER 2015
CASE NO. LC/H/268/15
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/04/2016

HARARE, 12 OCTOBER 2015	  		   CASE NO. LC/H/268/15

AND 08 JANUARY 2016

In the matter between:-

FRESHPRO DISTRIBUTORS			Appellant

And

MAJOR MASAWI					Respondent

Before Honourable R. Manyangadze, J

For Appellant 		-	J.R. Tsivama (Legal Practitioner)

For Respondent		-	In person

MANYANGADZE, J:

This is an appeal against an arbitral award in terms of which the appellant was ordered to pay a total amount of US$7 158,06 to the respondent, as outstanding salaries and notice pay.

The brief facts of the matter are that the respondent was employed by the appellant as Human Resources Officer.  The contract of employment was terminated on what appears on record to be a mutual termination of employment.

The respondent referred the matter to a Labour Officer for conciliation, alleging unfair dismissal. When conciliation failed, the matter was referred to compulsory arbitration, leading to the contested arbitral award.

The grounds of appeal are stated as follows:

“Having concluded that the appellant did not commit an unfair labour practice the Honourable Arbitrator erred at law in ordering the appellant to pay the respondent what he described as outstanding salaries up to June 2012 inspite of the mutual termination agreement signed by the parties in September 2010.

The Arbitrator’s finding that there was no mutual termination of employment even though he accepted that such intention was there is so irrational that no Arbitration applying his mind would have arrived at such a finding, especially given the other available evidence confirming such agreement and the respondent’s own claim for terminal benefits.

The Arbitrator accordingly erred at law in not accepting the mutual termination agreement produced by the appellant as a valid and binding agreement.

The Arbitrator erred at law in holding that the respondent is entitled to salaries when he was not providing any services to the appellant for the period in question, did not attempt to do so and had secured alternative employment in South Africa.

Even if the Arbitrator were right in rejecting the mutual termination agreement, which is not accepted, by taking up employment in South Africa the respondent effectively terminated his employment with the appellant.

The Arbitrator’s finding that the respondent was earning a monthly salary of US $250.00 on the basis of the respondent’s mere say so and inspite of the evidence availed by the appellant confirming a monthly salary of US $150.00 is so irrational that no Arbitrator applying his mind to the facts would have come to such  conclusion.

The Arbitrator erred at law giving the respondent the benefit of the doubt regarding the salary he was earning when the onus to prove such salary actually lay with the respondent.

The Arbitrator erred at law in finding that the respondent is entitled to outstanding salaries and at the same time find that the respondent is not entitled to a termination package which the respondent had claimed no doubt because he accepted the termination of the employment contract. In any event such a finding is so irrational that no Arbitrator applying his mind would come to such a conclusion.

The Arbitrator erred at law in concluding that the appellant argued that the respondent went on leave when it had always maintained that there was a mutual termination of employment. Such a finding is of irrational that no Arbitrator applying his mind would come to such a conclusion.”

From the parties’ written and oral submissions, the appeal turns on one fundamental issue.  The issue is whether or not there was mutual termination of employment, and the terms and conditions thereof.

The appellant asserted that it is not indebted to the respondent in any way.  The contract of employment was mutually terminated, and the respondent was duly paid his terminal benefits.  The appellant averred that the parties negotiated and agreed on an out of Court settlement constituted as follows:

Outstanding salaries

(June 2009 – September 2010		=	$2 160,00

@ US $150,00 per month)

Notice pay 150 x 3 months)		=	     450,00

Gratuity ($150 x 3 months)		=	     450,00

Total						=     US$3060,00

Payment due to the respondent came down to US$2 467,00 after tax deductions.

A termination form filed of record indicates that a payment of US$500,00 was made on 5 October 2015 and another one of US$500,00 was made on 26 October 2015.  The balance of US$1 467,00 was paid on 25 November 2010.  Filed of record is an “Acknowledgment of Receipt” for an amount of US$1 467,00, constituting terminal benefits, received at Innscor Salaries offices.

Also filed of record is a “Termination of Employment Contract between Mr Major Masawi & Freshpro” concluded on 5 October 2010.  These are the documents the appellant relied on in support of its averment that termination of the respondent’s employment was a mutually settled matter.

On the other hand, the respondent averred that the arbitrator was correct in awarding him the amount of US $7 158,00 in outstanding wages and terminal benefits.  He contended that the arbitrator correctly held that there was no mutual termination of employment.  He asserted that he was unlawfully terminated.  The appellant should have either terminated his employment following disciplinary proceedings, or payment of a retrenchment package. In other words, the termination should have been in terms of the dismissal requirements laid down in Section 12B of the Labour Act, [Chapter 28:01]. The respondent regarded the termination of his employment as an unfair dismissal.

On the mutual termination documents referred to above, the respondent averred that he never signed such documents.  They are products of forgery on the part of the appellant.

As already indicated, the decisive issue in this matter is whether or not there was a mutual termination of employment.  The appellant produced documents showing that there was an agreement to terminate employment, signed by both parties.  In rebuttal, the respondent alleged that the documents were fraudulent.  It was, in my view, incumbent upon the respondent to substantiate his allegations of fraud or forgery.  This is particularly so in light of the fact that he admits accepting the amount of US$1 467,00, which appears in a document in which it is described as terminal benefits.

The respondent made strong allegations of fraud and coercion in relation to the termination agreement.   Paragraph 7 of his heads of argument states:

“Termination by mutual agreement should not be achieved through coercion, fraudulent misrepresentation, undue influence or force.”

These serious allegations, which affect the integrity of the appellant as an employer in an extremely adverse manner, were not substantiated.  It is difficult to appreciate the basis on which the appellant’s evidence of a termination agreement was rejected, vis avis the respondent’s unsubstantiated rebuttal. In Astra Industries Limited v Peter Chamburuka SC 27/12, the Supreme Court held that;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.  This position has been affirmed by this Court. In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Machin 1965 (2) 507 706 AD at 711 E-G.”

“The general principle governing the determination of the incidence of the onus is the one stated in the Corpus Luris simper necessitastroban iincumbitilli qui agit.  In other words he who seeks a remedy must prove the grounds therefore.”

The matter is further complicated by the arbitrator’s finding that;

“the respondent did not commit any unfair labour practice”

Having made such a finding, it was then difficult to reconcile the rest of the award with that finding.  In this regard, the appellant submitted in paragraph 4 of its heads of argument;

“The Arbitrator having heard and considered the versions by both the appellant and the respondent, as well as the available evidence, did come to the correct conclusion that the appellant had not committed an unfair labour practice.  It is respectfully submitted that this should have been the end of the matter because all the other issues flow from the complaint of unfair labour practice.  If there is no unfair labour practice then it should follow that there is no right to be enforced.  Secondly the Arbitrator would only be seized with the matter if an unfair labour practice had been committed.  Simply put, by finding that the employer had not committed an unfair labour practice the Arbitrator was effectively saying that the appellant had not done anything wrong in its termination of the employment contract.  On what basis then would the appellant be liable to pay the amounts awarded by the Arbitrator for a period well after the termination date? It is respectfully submitted that no Arbitrator applying his mind to the facts before him could have come to such a conclusion.”

Given that it is common cause there were negotiations on a termination settlement, and the respondent accepted payment in connection therewith, the conclusion is inescapable the parties reached such a settlement.  The probabilities of the matter are heavily staked against the respondent.  It is difficult to appreciate why the arbitrator decided otherwise. The arbitrator arrived at a decision which was clearly inconsistent with the evidence placed before him.  As indicated in Barros and Another v Chimponda 1999 (1) ZLR 58, this can provide a valid basis for interfering with his decision. It is the court’s considered view that there is a justifiable basis for interfering with the arbitral award.  The appeal must be allowed in the circumstances.

It is accordingly ordered that;

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 25 February 2015 be and is hereby set aside.

The respondent shall bear the appellant’s costs.

Sawyer & Mkushi, appellant’s legal practitioners