Hello Zimbabwe Restaurants v Tonderai Motswapo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/185/24
HARARE, 9 FEBRUARY 2024 23 APRIL
CASE NO LC/H/652/2021
HELLO ZIMBABWE RESTAURANTS
APPELLANT
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==============================IN THE LABOUR COURT OF ZIMBABWE
HARARE, 9 FEBRUARY 2024 23 APRIL
2024

JUDGMENT NO LC/H/185/24
CASE NO LC/H/652/2021

HELLO ZIMBABWE RESTAURANTS
APPELLANT

TONDERAI MOTSWAPO
RESPONDENT

Before the Honourable G. Musariiri Judge:

For Appellant - Mr C.J. Mahova, Attorney
For Respondent - Mr D Sithole, Attorney

MUSARIRI, J:

On the 1st November 2021 at Harare, F. Mutambirwa N.O. in her capacity as a Designated Agent (DA) made a determination. She ordered appellant (employer) to pay respondent (employee) various amounts of money for outstanding service pay, notice pay, leave pay, overtime, unpaid wages and housing allowance. The employer then appealed the determination to this Court in terms of section 92D of the Labour Act Chapter 28:01. The employee opposed the appeal.

The grounds of appeal were six-fold as follows;

“1. The designated agent (DA) misdirected herself in fact and subsequently erred at law in finding that the respondent was employed for a period of twenty-two (22) months.
2. The DA misdirected herself in fact and subsequently erred at law in finding that there was no employment agreement between the parties and concluded that the NEC minimums applied.
3. The DA misdirected herself in fact and subsequently erred at law in finding that the Respondent accrued 55 leave days.
4. The DA misdirected herself in fact and subsequently at law in finding that the Respondent was entitled to his full salary for the four months during the lockdown period, in circumstances where there was a national directive prohibiting all restaurants from operating.”


5. The DA erred at law in finding that the Respondent is entitled to US$2,179.25 overtime.
6. The DA erred at law in ordering Appellant to pay Claimant in United States Dollars without the option of payment in local currency.”

These diverse grounds raise 3 (three) issues which shall be dealt with in turn.

1. Whether the parties employment contract ran for 22 (twenty-two) months. The Designated Agent (DA) noted that

“The claimant was in the employ of the respondent from June 2019 to early April 2021 when his contract was terminated, a total of 22 months.”

The effect of Covid 19 lockdowns on the duration of the contract is not discussed in the determination. The employer’s position was set out in a written response submitted to the DA.

The relevant portions read

“1. It is common cause that the Appellant was employed by the Respondent from June 2019 to April 2021 when his contract of employment was terminated…
2. The Respondent submits it was not operating during the lockdown period further to the government restrictions for the period April 2020; January 2021; February 2021 and March 2021. Likewise, the Respondent did not report for duty during that period. Since the Respondent was not generating any income, the Applicant was not paid for the period that he did not report for work. It is the Respondent’s submission that the prince of ‘no work’ ‘no pay’ applies with regards to the period of lockdown abovementioned and Applicant is therefore not entitled to claim salary for that period.”

The period from June 2019 to April 2022 covers 22 months. The employer deducted the 4 months he claimed the employment contract was suspended by Covid lockdowns. Thus it argued that the contract ran for 18 months. In its heads of argument, the employer argued that

“7. The Respondent argues that the Appellant was supposed to apply for exemption to the National Employment Council for the Catering Industry. The Appellant contends that this does not however bar it from pleading supervening impossibility. In the case of Beitbridge-Bulawayo Railway v Commercial Union Insurance SC-57-07 it was stated that

‘That general rule in our law is that if as a result of vis major or other supervening physical or legal act performance of a contract has become impossible through no fault of the debtor, the obligations under the contract are extinguished.”


Per contra the employee relied on the (C.B.A) Collective Bargaining Agreement:

Catering Industry (General Conditions) S I 25/22 whose section 5 provides that,

“5. The council may in its sole discretion and upon such terms and conditions as it may determine grant exemption, in writing, from any of the provisions of this agreement to any employer and employee. Such exemption may be cancelled by the council at its discretion.”

She argued that the employer, not having been exempted by the relevant council, was obliged to pay her wages Covid or no Covid.

The Court is persuaded by the employee’s argument. As far as payment of wages in the catering sector goes, the common rule of vis major has been replaced by the explicit wording of the CBA. The suspensions of the employer’s obligation to pay wages during the employment contract can only be gotten by exemption issued by council. It is therefore concluded that the employment contract in casu ran for 22 months.

2. What adjustments ought to be made to awards made by the DA

a) Notice pay

The employer conceded that the award was due.

b. Service pay

The employer argued that the amount of $207.00 (rather 274.50 awarded) was due. This was based on its calculation of the award over 18 months rather than 22 months. Therefore, their argument cannot be sustained in light of the resolution of the 1st issue.

c. Cash in lieu of leave

The employer relied on section 20(8) of the CBA which states;

“No employee shall be entitled to take vacation leave during his or her first year of continuous service.”

It therefore argued that the employee was entitled to leave days accrued over 6 months (being 18 months minus 12 months). This argument flies in the face of section 20(1) which reads

“Subject to the provisions of subclause 6 (termination during 1st year of employment), an employee shall accumulate vacation leave at the rate of 30 consecutive days for each year of continuous service.”


Therefore the 1st year of employment also accrues vacation leave. Section 8 deals with the taking of vacation leave and not its accrual. Thus, the award by the DA cannot be adjusted as pleaded.

d. Overtime:

The employer abandoned its challenge of the award.

e. Unpaid wages

This relates to the Covid argument which has been resolved against the employer.

f. Housing allowance

The employer argued that the allowance was set at ZWL $350 per month. Therefore, the amount due calculated over 18 months amounts to $6 300.00. Again, the employer erred by calculating the allowance over 18 months instead 22 months.

3. Whether the DA erred in ordering payment in foreign currency without the option of payment in local currency:

The employer argued per para 19 of its heads of argument,

“19 The Appellant further submits that the fact that the Respondent was being paid half of his salary in United States Dollars does not mean that the Appellant is obliged to pay the terminal benefits in United States Dollars. SI 85 of 2020 provides for payment of services in foreign currency where a person is a holder of free funds and if they are available to him”.

The DA concluded his award thus

“Total in USD 5,187.90 half of it being paid in RTGS. Unpaid housing allowance should also be paid in RTGS a total of $7,5829.00”

There was no basis for splitting payment of the USD component as done by the DA. However, as a matter of the current currency laws any award in USD can be settled either in USD or the Zimbabwe currency (ZiG) equivalent at the prevailing bank exchange rate. Therefore, the employer is at liberty to settle the USD component of the award in either USD or Zig. There is no need to vary the award’s wording.


CONCLUSION

All the issues raised have been resolved against appellant. Therefore, its appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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