Jacquiline Mubvumba & Another v Foodworld

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/112/16
HELD AT HARARE 17 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/112/16
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IN THE LABOUR  COURT OF ZIMBABWE			JUDGMENT NO LC/H/112/16

HELD AT HARARE 17 FEBRUARY 2016			CASE NO LC/H/486/15

& 4 MARCH 2016

In the matter between:

JACQUILINE MUBVUMBA & ANOTHER			Appellants

And

FOODWORLD							Respondents

Before The Honourable P Muzofa, Judge

1st Appellant			In person

2nd Appellant			In default

For Respondent		Ms Tuso (Human Resources Manager)

MUZOFA, J:

The two appellants were employed on fixed term contract in different capacities by the respondent.  Upon termination of their contracts a dispute arose in the computation of their terminal benefits.

The appellants referred the dispute to a labour officer and subsequently the matter went before an arbitrator.  The arbitrator after considering the evidence before him, the first respondent was awarded a total sum of $718.45 and second respondent $790.93.

Both have appealed.

The grounds of appeal impugn the arbitrator’s findings in respect of cash in lieu of leave and overtime payment.

Cash in lieu of leave

The first appellant submitted that she had accumulated sixty days leave that were not paid.  No submissions were made on behalf of the second respondent since there was no appearance for her.

The grounds of appeal raise factual issues.  It is a settled principle of our law that where an appeal raises factual issues it must be shown that the decision made was grossly unreasonable in view of the available facts see Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S).

The first appellant conceded she did not produce any evidence before the arbitrator to prove her claim of sixty days leave entitlement.  It defies logic then she sought to establish before this court that the arbitrator fell into error in making the finding.  For that reason alone this ground of appeal cannot succeed and it is therefore dismissed.

Overtime

According to the first appellant she used to work from 0530 hours to 2030 hours from 2009 to 2013.  She therefore was entitled to payment of overtime as claimed before the arbitrator.  She submitted that overtime work ceased in May 2013 after the Chief Executive Officer’s directive.

There was a concession also that no evidence was produced before the arbitrator to prove this claim.  The first appellant claimed the respondent as the employer did not produce the relevant time sheet.  It only produced time sheets from May 2013 when overtime work had ceased.

The position of the law is that he who alleges should prove his claim.  In the case of First Mutual Life Ltd v Jackson Muzivi SC 9/07, the Supreme Court reiterated this position even in a situation like this where the employer is the custodian of the evidence. The claimant should still prove her case.

In casu it was submitted for the respondent that no request for time sheets were made so no blame can be apportioned to the respondent.

The respondent submitted that the practice was that overtime work was compensated by way of off days.  It was on rare occasions that monetary payments were made.  Respondent was of the view that it did not owe overtime payment to the first appellant.

However the arbitrator after considering the registers produced before him awarded the first appellant $75.  This was not challenged by the respondent.

From the foregoing clearly the appeal has no merit.

Accordingly the following order is made

The appeal be and is hereby dismissed in its entirety.