John Rugwete v Cold Chain (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/619/16
HELD AT HARARE 31 MAY 2016
CASE NO
JUDGMENT NO LC/H/619/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/619/16

HELD AT HARARE 31 MAY 2016				CASE NO LC/H/995/14

& 7 OCTOBER 2016

JOHN RUGWETE					Appellant

COLD CHAIN (PVT) LTD				Respondent

Before the Honourable G Musariri, Judge

For Appellant		Mr J Rugwete, Appellant

For Respondent		I Chagonda, Attorney

MUSARIRI J:

On 2 October 2014 at Harare, arbitrator C T Kadenga issued an arbitration award.  She ordered respondent to pay appellant an amount of USD423.52 for leave days.  Appellant  then appealed to this court.  Respondent opposed the appeal.  The grounds of appeal were three-fold thus,

“1. The arbitrator erred in failing to make a finding that as at 14 July 2009, the appellant was an employee of the respondent and was entitled to a salary.

2. The honourable arbitrator erred in calculating leave days at the rate applicable in 2009, leave days are paid at the rate obtaining at the time of calculations in other words the current rate should be used to calculate the value of leave days.

3. The honourable arbitrator erred in finding that a management employee is not entitled to gratuity.”

Upon application by respondent which was opposed by appellant, this court struck off grounds 1 and 2.  Therefore the issue before this court is whether or not appellant, as a management employee, was entitled to a gratuity.

The arbitrator found as follows,

“Claimant was a managerial employee hence is not entitled to a gratuity.”

In his heads of argument filed in this court appellant argued that

“2.5 III Gratuity – respondent did not provide any authority/law which states  that managers are not entitled to gratuity.  In the event the honourable court finds that appellant as manager does not qualify, of the 12 years service appellant was manager for four years.  Appellant would still qualify for eight years gratuity at eleven percent i.e. $440.00.”

Appellant cited no statute, precedent or principle which entitled him to a gratuity.  His argument sought to shift the burden of proof upon the respondent.  That position was misguided.  As the claimant, he bore the burden of proof and as such it was incumbent upon him to cite the authorities in favour of his case.  He failed to do so.  Hence the arbitrator could not award his claim.

Respondent’s heads of argument countered as follows,

“12. There is no merit in the 3rd ground of appeal as the Collective Bargaining Agreement for the relevant industry does not apply to managerial employees and as such gratuity did not apply.  In terms of section 13 of the Labour Act, an employee is entitled to the wages and benefits due to him up to the time of such termination.  In casu, appellant as a managerial employee is not entitled to a gratuity hence it is a benefit not due to appellant and has not (sic) rightful claim to same.”

I am persuaded by respondent’s argument.  Gratuities are provided for either in the employment contract or the industry/sector’s Collective Bargaining Agreement (CBA).  Appellant failed to show his “entitlement” before both the arbitrator and this court.  Therefore his appeal must fail.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E