June Gorejena & 3 Ors v Rock Chemical Fillers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/338/16
HELD AT HARARE ON 17th MAY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/338/16

HELD AT HARARE ON 17th MAY, 2016		   CASE NO. LC/H/1118/15

AND 27TH MAY, 2016

In the matter between:-

JUNE GOREJENA 								1st Appellant

LOVEMORE TAMANYIKWA						2nd Appellant

ALEXANDER MEZA							3rd Appellant

DANIEL CHIFAMBA							4th Appellant

And

ROCK CHEMICAL FILLERS						Respondent

Before the Honourable Mhuri, J.

Appellants			In Person

For Respondent	:	Mr M. Masere (Human Resources Manager)

MHURI J.

This is an appeal against an arbitral award.

The terms of reference, which the Arbitrator had to consider were:

Alleged unlawful termination of contract;

Reduction in salary;

Non-payment of leave days.

The record shows that all the Appellants were in attendance at the arbitration hearing.  The record also shows that the Arbitrator considered both parties’ oral and written submissions before issuing an award to the effect that:

the Appellants contracts were lawfully terminated by effluxion of time;

the claim for unpaid leave was not substantiated or proved;

there was no underpayment of wages.

In deciding on the first term of reference, the Arbitrator analysed the evidence and the law and came to the conclusion that the Appellants were on 3 months fixed term contracts which were not renewed in June 2015.

In deciding the second term of reference, the Arbitrator found that there were no clear submissions as to which days or leave days they were not paid.  It is an established principle of the law that the burden to prove a claim lies on the party that avers.  He who alleges must prove their claim.  Where a party fails to adduce evidence, then that claim remains unproved.

In casu, it was Appellants’ submissions that the Arbitrator pressured them and did not give them an opportunity to present their bank statements or payslips.  This cannot reasonably be true, as claimants, it was incumbent upon Appellants to bring their evidence at the hearing.  From Meza’s submission before this court, it was an issue of him wanting $5 more to the $10 per day offered by Respondent.  He even failed to state how much in total he wanted.

In analysing the third term of reference, the Arbitrator observed that the Appellants refused to sign new contracts which stipulated a lower salary, which meant that they were not bound by these contracts.  They therefore could not claim underpayment.

This observation and finding cannot be impugned.  A party cannot seek to claim from a contract it has refused to be bound by.

Appellants’ grounds of appeal were four (4) namely:

Respondent wilfully and knowingly violated Labour Amendment No. 5 of 2015 Section 12(4) by arbitrally dismissing us.

This ground does not attack the Arbitrator’s award.  As alluded to earlier, the Arbitrator found that the Appellants were on fixed term contracts which terminated on effluxion of time.  Appellants’ refused to sign new contracts on the basis that the salary had been varied.

The employer purposefully failed to give us proper contracts consistently.  We kindly wish this Court to cancel all our contracts for the forms used by our employer were substandard.

This is not a proper ground of appeal.

The arbitrator erred and misdirected himself by suggesting that we were lawfully terminated without proof of our contracts.

The Arbitrator considered the evidence placed before him and came to a conclusion that the contracts expired and were not renewed.  Before the Arbitrator Appellants had submitted that they were in Respondent’s employ on several (3) three months fixed term contracts.  This being common cause there was no strict requirement for Arbitrator to have sight of the contracts.

The Arbitrator turned a blind eye to Section 8 of the contract form that clearly talk of 2.5 leave days that accrued at the end of every month.

As stated earlier, the burden to prove this claim lay on Appellants.  The Arbitrator found that Appellants failed to prove which days they were not paid considering that Respondent had provided proof that it had paid all outstanding leave at the end of each contract.

Overally I find that the arbitral award is totally unassailable, and will confirm it.

To that end therefore it is ordered that the appeal be and is hereby dismissed.