Ibrahim Stores (Private) Limited v [Respondent]

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/4/24
HELD AT HARARE 20TH OCTOBER 2023
CASE MNO LC/H/534/23
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FOR THE APPELLANT:MR D. TANDIRI (LEGAL PRACTITIONER) FOR THE RESPONDENT: IN PERSON

MAKAMURE J.

This is an appeal against a decision by a designated agent (DA) under the Collective Bargaining Agreement for the Catering Industry (CBA Catering).

The respondent was employed by the appellant as a cook on the basis of a fixed term contract under the Collective Bargaining Agreement for the Commercial Sectors of Zimbabwe (NECCS/NECCSZ) . Following termination of the contract the respondent raised a claim for underpayment of wages and certain benefits. As indicated above the matter was determined by a DA falling under CBA Catering. The DA found in favour of the respondent. The determination aggrieved the appellant and hence the present appeal.

The following are the grounds of appeal:

‘1.The Designated Agent grossly erred by finding that she had jurisdiction to entertain and adjudicate upon the dispute between the parties yet the respondent’s position was covered by the Collective Bargaining Agreement for the Commercial Sectors of Zimbabwe and not by the Collective Bargaining Agreement for the Catering Industry. The Appellant belongs to the NEC Commercial Sectors.

The Designated Agent grossly misdirected herself by not considering and finding that the respondent had, by accepting payments which were effected in terms of the Collective Bargaining Agreement for the Commercial Sectors of Zimbabwe during the whole duration of his contract of employment , waived his legal right to raise claims and sue on the basis of the collective Bargaining Agreement for the Catering Industry.

The designated agent also grossly misdirected herself by not applying and completely ignoring the caveat subscriptor rule. She erred by assisting the respondent to escape the consequences of the rule.

The designated agent grossly erred by purporting to rewrite the contract for the parties well after it had already terminated by effluxion of time.

The designated agent grossly misdirected herself by not considering that the contract may have been entered into by the parties on the basis of a common or mutual mistake.’

It is not disputed that Ibrahim Stores (Private) Limited ( the appellant ) employed the respondent as a canteen cook. It appears not disputed that the appellant’s operations are governed by the National Employment Council for the Commercial Sectors.

When parties appeared before the DA the appellant (then respondent ) challenged the jurisdiction of the DA on the basis that since the appellant fell under NECCS the DA had no jurisdiction to hear and determine the dispute in question. The challenge was in view of the fact that the DA was for the National Employment Council for the Catering Industry . The DA dismissed the preliminary issue raised on behalf of the appellant saying that the appellant’s services fall under the catering industry and therefore they had jurisdiction to hear and determine the dispute. Having ruled that they had jurisdiction to deal with the matter the DA also mentioned that the parties were misled into signing a contract under NECCS and then proceeded to determine the matter. According to the DA the respondent’s claims were not disputed. Accordingly, the respondent’s claims were granted.

When parties appeared before the Court Mr Tandiri who appeared on behalf of the appellant, stood by the papers filed of record and proceeded to highlight the following. That the DA had failed to properly consider the preliminary issue he had raised, namely, that since the contract between the parties was governed by NECCS the DA for the Catering Industry had no jurisdiction. That the DA did not make a distinction between canteens falling under the catering industry and those that fell under the Commercial Sectors. Mr Tandiri submitted hat

canteens falling under the commercial sector are not governed by the catering industry. Further argued Mr Tandiri, a cook according to the catering industry refers to a person who is a graduate of a catering school and the respondent was not a graduate from such an institution. The DA ,Mr Tandiri submitted, did not even consider what the NECCS said about the position of a cook. Mr Tandiri submitted that under the circumstances the decision of the DA was erroneous. Mr Tandiri further argued that the respondent only raised the complaint after his contract with the appellant had terminated. For this reason, it was submitted that the respondent had waived his right to any claims since for the duration of the contract he was bound by NECCS. Mr Tandiri further argued that by providing a remedy based on a different CBA the DA was amending the parties’ contract and assisting the respondent to escape the consequences of the contract which bound him. Mr Tandiri submitted that the DA ought to have found that the parties made a common mistake if they did not appreciate that they contracted in terms of the wrong CBA. If the DA had found a common mistake then the parties were bound by that contract. It was submitted on behalf of the appellant that the determination by the DA was erroneous and ought to be set aside. The following are some of the case authorities cited on behalf of the appellant. Lufuno Mphaphuli and Associates (Pty) LTD v Andrews and Another 2009 (4)SA 529 (CC); Chidziva and Others v Zimbabwe Iron and Steel Co. Ltd1997 (2)ZLR 368 (S); Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (SC); National and Grindlays Bank Ltd v Yelverton 1972 (4) SA 114 (R) @ p235; Oasis Medical Centre (Pvt) Ltd v Beck & Anor HH 84-16;Ashanti Goldfields Zimbabwe Ltd v Mdala SC 60/17; Kundai Magodora & Ors v Care International Zimbabwe 24/14; Golden Beams Development (Pvt) Ltd v Mabhena HH296-21.

The respondent’s case before this Court was that the DA had the jurisdiction to determine his claim. This is so the argument continued, because his duties fell under the Catering Industry. Further the respondent argued that he pursued his claim after parting ways with the appellant as he is entitled to do under S92(1)(b)of the Labour Act (Chapter 28:01( the Act)).I must hasten to add though that in consulting the Act, I did not find S92(1)(b).The respondent also stated that he never resigned as asserted in the appellant’s heads of argument but that he was dismissed after he had raised the issue of underpayment with the appellant. The respondent insisted that he was employed as a cook in terms of clause 3(ii)of the Collective Bargaining Agreement Catering Industry (General Conditions) Statutory Instrument 25 of 2022 which defines cooks who fall under its ambit. The respondent further argued that the appellant sold

breakfast and lunch to employees in the commercial sectors but opted to fall under the commercial sectors which pays low wages.

It is not disputed that the appellant and the respondent entered into a fixed term contract of employment in terms of the NECCS. This was for the period 1st January 2022 to 31st January 2023. A clause in the contract ( p45/129) provides that :

‘ Please note that your salary will be in accordance to gazette salary rates for NEC Commercial Sectors as reviewed from time to time.’

From the parties’ respective positions, the manner that they parted ways appears to be debatable . However, that debate is not before this Court. What is before the Court is in terms of which CBA were the parties bound and whether there were underpayments due to the respondent as found by the DA.

The NECCS defines a cook as follows:

‘ “cook” means a person employed in an unlicensed restaurant, café, fish-and- chip shop, canteen, tea-room, or refreshment shop in the preparation and cooking of meals, such as simple forms of grills, fried fish , curry,hamburgers,eggs and

farinaceous dishes,, sandwiches and the like;’

What this shows is that there was provision for the position of a cook in that CBA. The DA’s findings were that the parties had contracted under a wrong CBA. The DA stated that:

‘The respondents are denying that they fall under the catering industry but the definition itself places them under the catering industry. They were misdirected into signing commercial contracts and their ignorance cannot prejudice the employee. It is my considered view that the services Ibrahim stores provided falls under the Catering Industry and as such I shall proceed to determine the merits of the matter.’

The DA did not make reference to the definition of a cook as provided for by the NECCS. There does not appear to be a comparison between the definition of a cook under the NECCS and CBA Catering. Further in finding that the services offered by the appellant fall under the CBA catering the DA did not in my view fully articulate what they meant by this.

It is a trite position of the law that once a person signs a document, they are bound by its contents. In ZESA Holdings v Itayi Utah SC32/18 the Supreme Court found a contract

signed freely and voluntarily to be binding. In ZFC Limited v Tapiwa Joel Furusa SC15/18 the Supreme Court quoted with approval from the case of Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (SC ) as follows:

‘The general principle which applies to contracts , and commonly designated as caveat subscriptor, is that a party to the contract is bound by his signature, whether or not he has understood the contract, or the contract was signed with blank spaces later to be filled in.Expatiating on this principle…DAVIES J cited with approval , the following statement by Innes CJ in Burger v Central South Africa Railways 1903 TS 571 and 578 …”It is a sound principle of law that a man , when he signs a contract , is taken to be bound by the ordinary meaning and effects of the words which appear over his signature.”’

In the present case two consenting parties signed a contract under the NECCS. Both parties wrongly or rightly were bound by that contract. Their contract was not in terms of the CBA Catering. This means that anything due to the respondent was in terms of that contract. Thus, it would be inappropriate for the respondent to benefit in terms of a CBA whose terms were not known to the other party. In other words when the DA found for the respondent in terms of the CBA Catering, the DA created a new contract for the parties. In Kundai Magodora & Ors v Care International (above) the Supreme Court stated that courts should not create new contracts for parties in the following words: ‘In principle it is not open to the courts to rewrite a contract entered into between the parties or to excuse them from the consequences of the contract that they have freely and voluntarily accepted , even if they are shown to be onerous or oppressive.’ When the DA decided that the parties had been misled into entering a contract using what he considered to be a wrong CBA and decided to correct the CBA he was rewriting a contract for the parties. That was inappropriate. I am therefore persuaded to agree with Mr Tandiri that the decision of the DA was erroneous.

It was submitted on behalf of the appellant that in the event that the DA was correct in finding that the parties had used a wrong CBA, then that was a mistake common to both parties. Mr Tandiri referred the Court to the case of Golden Beams Development (Pvt) Ltd v Mabhena HH 296-21(Golden Beams) in support of that submission. It was held in the Golden Beams case that

’29. A common mistake occurs when both parties to a contract are of the same mind, share the same mistake and believe a certain fact to be true which later turns out to

be untrue or incorrect. Their minds must be ad idem. A common mistake will render a contract void ab initio, “only if it leads the parties to make a contract which is

impossible of performance , …”

In the present case it is clear that the parties were able to fulfil their contractual obligations. Should there have been a mistake common to both parties, the contract would not have been voidable.

The respondent served his entire contract without complaint. He only complained of underpayments after he had parted ways with the appellant. In Chidziva & Ors v Zimbabwe Iron and Steel Company (above) the Supreme Court held that :’ In waiver, there must be proof that the party decided to abandon their right. That decision must be conveyed to the other party .In the present case the respondent was compliant with the terms of his contract in terms of the NECCS. The contract between him and the appellant has since been terminated. He cannot now seek to raise a claim in terms of the CBA Catering. He waived his right to claim under CBA Catering .

Having found that the DA fell into error by rewriting a contract for the parties it is clear that he fell into error by finding that they had jurisdiction to determine the matter in terms of the CBA Catering when the contract between the parties was governed by the NECCS. Further the respondent failed to raise the question of what he considered the appropriate CBA but instead accepted payment under the NECCS . He therefore waived his right to claims in terms of the CBA Catering. Further still, the respondent was bound by the contract which he signed with the respondent. There was no proof that the contract between the parties was entered into as a result of a mistake. However even if the contract had been entered into as a result of a mistake common to both parties, the contract was capable of performance and both parties where in agreement. Such contract would have therefore still bound the respondent.

In view of the foregoing I find that there is merit in all the grounds of appeal. The appeal succeeds.

Accordingly, it is ordered that :

The appeal is granted with costs.

The decision of the Designated Agent dated 12th June 2023 be and is hereby set aside and substituted with the following:

‘The claimant’s claims be and are hereby dismissed.’