Lake Lodges T/A Bumi Hills Safari Lodge v Harris Kanhukamwe & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/376/25
HELD AT HARARE
CASE NO. LC/H806/25
8 SEPTEMBER 2025 & 10 SEPTEMBER 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

8 SEPTEMBER 2025 & 10 SEPTEMBER 2025

JUDGMENT NO.LC/H/376/25 CASE NO.	LC/H806/25

LAKE LODGES T/A BUMI HILLS SAFARI LODGE		APPELLANT HARRIS KANHUKAMWE	1ST RESPONDENT

MR ITAI BONDA (NO)	2ND RESPONDENT

Before the Honourable Justice Tsikwa For Appellant: C Gohori

For Respondent: In person

TSIKWA J: This an appeal against the decision of the arbitrator in terms of Rule 19(1) of the Labour Court Rules, 2017 ARW Section 98(10) of the Labour Act awarding the 1st respondent bonus payment.

BACKGROUND FACTS

The 1st respondent was employed by the appellant as a Learner Professional Guide on a fixed term contract. The contract ran from 1 January 2024 to 31 December 2024. On 3 December 2024 the appellant informed the 1st respondent that it will not be renewing his contract and he was paid his terminal benefits. That brought to an end the employer/ employee relationship.

The 1st respondent then raised a complaint with the NEC but there was no consensus and the matter was referred for compulsory arbitration. The arbitrator ruled in favour of the 1st respondent giving rise to the current appeal.

GROUNDS OF APPEAL

Aggrieved by the arbitral award appellant approached this court on appeal. The grounds of appeal are as follows:

The Honourable Arbitrator erred at law misdirected himself by ignoring preliminary points by the appellant which could have disposed of the matter to the effect that the 1st respondent had already collected and accepted his terminal benefits thereby waiving

his right of recourse. Once a point of law has been raised the presiding official must deal with and dispose of the same before delving on the merits of the case.

The Honourable arbitrator erred at law and misdirected himself by inventing arguments for the 1st respondent with which he made an award in favour of the 1st respondent thereby heavily descending to the judicial arena to the detriment of the appellant.

The arbitrator erred at law and misdirected himself by upholding a claim that was not successfully proven by 1st respondent.

The arbitrator erred and misdirected himself at law by shifting the burden of proof to the appellant when 1st respondent could not sustain their claim in respect of the bonus claim.

The arbitrator erred at law and misdirected himself by dismissing the appellant’s submission that payment of bonus was not contractual and therefore discretionary.

RELIEF SOUGHT

The prayer by the appellant is for this court to order that:

1. The appeal succeeds and that the determination by the arbitrator be set aside and replaced with the following:

The claim for a bonus be and is hereby dismissed.

ISSUES FOR DETERMINATION

Whether or not the arbitrator did not make a determination on a point in limine and whether it has a fatal effect on the arbitral award.

Whether the arbitrator created an argument for the 1st respondent.

Whether or not 1st respondent was entitled to a bonus.

Whether or not the arbitrator was correct in shifting burden of proof to the appellant.

ARGUMENTS BY THE PARTIES

Before this court Mr Gohori for the appellant submitted that the arbitrator misdirected himself in law in failing to make a determination on the point in limine raised that the 1st respondent had been paid his terminal benefits and acknowledged that he will not be making further claims. It was submitted that the arbitrator never made an attempt to deal with this matter and similarly

1st respondent in his heads of argument. He insisted that the 1st respondent waived his right to make further claims against the appellant. In support of his argument, he cited the case of Chidziwa and Others v Zimbabwe Iron and Steel Company Limited 1997 (2) ZLR 368 (S) where it was stated as follows:

“After all waiver is a renunciation of a right when the intention to renounce is expressly communicated to the person affected, he is entitled to act upon it and the right is gone. When the renunciation though not communicated , if evidenced by conduct inconsistent with enforcement of the right or clearly showing an intention to surrender it then, also the intention may be acted upon and the right perishes----”

He thus argued that this preliminary point was not successfully challenged and the arbitrator erred by not making a determination on it.

Mr Gohori further submitted that the arbitrator erred at by basing his decision on arguments not put forward by the 1st respondent. He essentially accused the arbitrator of manufacturing arguments for the 1st respondent thereby descending into the judicial arena. He submitted that the 1st respondent failed to motivate his argument for the bonus claim but the arbitrator went at length to scrounge for evidence to justify his award. He said the arbitrator ended up shifting the burden to the appellant that there was no basis to pay the bonus.

Further Mr Gohori  attacked the  decision by the  arbitrator to dismiss without basis the appellant’s submission that in casu bonus was discretionary not contractual. He said bonus was paid by the employer as a show of appreciation by the employer for the job well done throughout the year. He went on to advise the court that the appellant could not have appreciated the 1st respondent for his rudeness, arrogance, disrespect for authority and laziness. He referred the court to assessment reports for the Learner Guides including those for the 1st respondent for the months August to November 2024. These reports revealed that in August the 1st respondent had a sudden change of attitude, he became arrogant. Most of the time that month he was on time off. The September assessment revealed that the mentor took time to sit down with him and alerted him of the dangers of or consequences of his conduct and attitude towards work. The October assessment revealed that he needed more time in shooting lion and buffalo on approach. The November assessment report showed that there was room for performance.

Mr Gohori summed up his address by saying the above assessments persuaded the appellant not to pay the 1st respondent bonus. He prayed that the appeal succeeds and be granted as per draft order.

The 1st respondent, Mr Harris Kanhukamwe advised the court that by and large he abides by the submissions already filed of record and he sees nothing wrong with the decision of the arbitrator. He further submitted that in so far as he is concerned there was no reason why he was not paid a bonus because he was never charged for the alleged misconduct or even served with a letter of warning. He submitted the assessment reports must have been doctored because he never got feedback that he was not performing well. The 1st respondent further told the court that payment of bonus was being done annually therefore through practice or custom he deserved bonus and there was no proper basis to discriminate against him. He prayed for the dismissal of the appeal.

APPLICATION OF THE LAW TO THE FACTS

It is a matter of settled law that an appeal from the decision of the arbitrator shall only be on a point of law in terms of Section 98(10) of the Labour Act. In this case it is not dispute that the arbitrator did not decide on the preliminary point raised by the appellant and went on to decide the matter on the basis of other facts. At face value this appears to be a ground for review until one considers the reasoning of the arbitrator.

It would appear the arbitrator did not appreciate the importance of the point in limine because he was of the view that the appellant was legally bound to pay bonus to the 1st respondent. He came to this conclusion having considered the provisions of Section 12(2)(h) of the Labour Act which read as follows:

“2. An employer shall, upon engagement of an employee, inform the employee in

writing of the following particulars:

(h)particulars of any bonus or incentive scheme.”

From the ruling by the arbitrator, he appeared to have understood this to place a legal obligation on the appellant to pay bonus to the 1st respondent. What the arbitrator failed to realize is that the Section was imposing an obligation to advise the employee of any bonus scheme if any was in place.

The arbitrator also erred in making a finding that the 1st respondent was entitled to a bonus simply on the basis that he was not charged and convicted of the alleged acts of misconduct. What he did not realise was the fact that the performance reports for the months August to November were not challenged. An attempt to challenge them was only made during the hearing of this appeal which was improper. The reports show that these reports were brought to his attention especially the September report. The mentor sat down with him and appraised him of the need to improve and the consequences of failing to improve. These reports showed that the 1st respondent did not deserve a bonus.

The arbitrator also appeared not to understand the ratio decidendi of the of the case of Tendai Bonde v National Foods Limited SC57/20 which he relied upon. That case is instructive in so far as it demonstrates the importance of making bonus scheme and conditions known to the employee. In this case the court made it clear that where there is prior agreement between the employer and employee that once the employee is convicted of a disciplinary offence the employer would withhold bonus payment. The case authority does not say bonus can only be withheld where there is a conviction for a disciplinary offence. The arbitrator therefore misapplied the law.

The arbitrator also made a finding that since bonus was being paid annually the 1st respondent was also entitled to bonus just like his colleagues. What he overlooked was the fact that bonus is benefit paid at the discretion of the employer. Its payment can be on the basis of a contract of employment or it will performance based. Where it is part of a contract of employment the employer cannot unilaterally withdraw it. This was stated in the case of Clan Transport Company (Pvt) Ltd v Clan Workers Committee SC1/02 where the court commented as follows:

“The respondents were not entitled to an award under this heard since bonus is usually performance related unless evidence led reveals the contrary and no such evidence was led.”

On the basis of the above it is apparent that the 1st respondent had no automatic right to bonus. His poor performance as documented in the performance reports disqualified him from bonus payment. Let alone the employer by not paying bonus to 1st respondent on the basis of poor performance did not discriminate against him in the strict sense of the word as contemplated in the Constitution of the Zimbabwe. All what was required of him was to exhibit good behaviour and good performance. This more so in the case as payment of a bonus was at the discretion of

the employer. It was paid at the discretion of the employer and it not part of a scheme in terms of Section 12(2)(h) of the Labour Act. The Supreme Court summed up the above position as follows in the case of T.M Supermarkets (Private) Limited v Itai Nkomo and 2 Others SC26/18:

“A bonus is what can be termed a benefit. The implication that can be drawn is that the grant of a bonus per se is not illegal and an employer cannot be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has a right to performance based on incentive and if they work well without any reference being made to their class, race, tribe, or any other factor on the basis upon which discrimination can be competently committed. Thus, the grant of performance bonus is therefore not proscribed by law. “

The arbitrator therefore misdirected himself on a point of law on this aspect.

The arbitrator also misdirected by shifting the burden of proof on the appellant to prove that the 1st respondent was not entitled to a bonus. He overlooked the basic principle that he who alleges bears the onus of proof. The position of the law where bonus payment is discretionary was clarified in the case of Rodwell Jariremombe and Others v NSSA HH 402/18 where High Court to the conclusion where bonus has been paid for a considerable period and later withdrawn by the employer the employer cannot be compelled to pay it and employer can withdraw it at any time. In that case NSSA had withdrawn payment having been paying it for some time. The employees approached the High Court intending to obtain a declaratory order compelling NSSA to pay the bonus. The High Court however declined to issue the order stating that once bonus payment is discretionary, the fact that it was honoured in many years does not mean that it ceases to be discretionary.

The court concluded by saying that the situation would have been different had the bonus payment been vested in terms of a contract of employment where the employer would not have discretion.

In view of the foregoing, it is apparent the arbitrator erred at law in awarding bonus payment to the 1st respondent. Wherefore the court orders that:

The appeal against the decision of the 2nd respondent succeeds.

The determination by the 2nd respondent in paragraphs 2 and 3 of the arbitral award be and is hereby set aside and substituted with the following:

The claim for bonus payment be and is hereby dismissed.

Mangachena Attorneys, Appellant’s Legal Practitioners

1st Respondent, in person

Tsikwa J