Lakefin Marketing (Pvt) Ltd v Florence Matsveru

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/605/2016
HARARE, 27 JUNE 2016
CASE NO. LC/H/605/2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/605/2016

HARARE, 27 JUNE 2016			           	   CASE NO. LC/H/1041/15

AND 7 OCTOBER 2016

In the matter between:-

LAKEFIN MARKETING (PVT) LTD				Appellant

And

FLORENCE MATSVERU						Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		C Chipere (Legal Practitioner)

For Respondent		Mr M Chisveto (GEMISAWU)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator C Tanyanyiwa that was handed down on 22 October 2015.  The award is couched as follows:

“I therefore award that the employee is entitled to the following:

90 days cash in lieu of annual leave due.

Terminal benefits upon termination of the contract of employment.

The employee is entitled to outstanding wage arrears during the time she was on maternity leave.

The issue pertaining to non-payment of wages during the time she was on maternity leave is normally dismissed because she got paid a salary of $250.00 instead of US$299,87 but was not paid any commission because she did not do any sales during the time she was on maternity leave.”

The brief history of this matter is that;

Respondent was engaged by the Appellant on the 2nd of May 2012 as a Sales Representative.

Between January 2014 and April 2014 the Respondent went on Maternity Leave.

On 17th of April 2014 the Respondent reported for duty.

It is alleged that Respondent was assigned counter duties as she was breast feeding (i.e. counter sales representative)

But she refused to take up that duty.

Respondent was dismissed from duty.  However appellant after realizing that the dismissal was unlawful it advised respondent to report back for duty but she did not indicate that she had already reported to the Labour Officer.

Respondent was formally charged in terms of the National Code of Conduct for refusing to obey lawful orders.  The letter was delivered to her residence in Mabvuku. She was advised to report for hearing on the 12th of May 2014 and that she had absented herself from duty since the 17th of April 2014 without official leave.

The matter went for arbitration.  On the 5th December 2014 the arbitrator handed down an award that ordered reinstatement of the respondent by the appellant without loss of salary and benefits.

On the 7th January 2015 appellant appealed against the award at the Labour Court.

Justice Mhuri on the 20th July 2015 with the consent of both parties referred the matter back to the same arbitrator to deal with the following matters.

Alleged unfair dismissal.

Non-payment of wages.

Maternity leave.

Annual leave and

Terminal benefits.

On 22 October 2014 the Honourable Arbitrator handed down her award which is the subject of this appeal.

The grounds of appeal cited by the appellant are as follows;

The Arbitrator grossly misdirected herself by determining the issue of unfair dismissal on the basis of the previous award and not on submissions made by the appellant after the matter had been re-directed to her by the Labour Court.

The Honourable Arbitrator grossly misdirected herself on the facts, which misdirection culminated into an error of law by concluding that the respondent was entitled to 90 (ninety) days cash in lieu of annual leave, yet there was evidence that the appellant had a shutdown policy every year and all the employees were paid whilst on annual leave.

The Honourable Arbitrator erred and misdirected herself on a point of law when she failed to deal with all issues as ordered by the Labour Court.

The Honourable Arbitrator erred by concluding that;

“the issue pertaining to non-payment of wages during the time she was on maternity leave is normally dismissed because she got paid a salary of US$250,00 instead of USD299,87 but was not paid any commission because she did not do any sales during the time she was on maternity leave.”

The appellant on these grounds prayed that;

The decision of the Honourable Arbitrator be and is hereby set aside.

That the respondent be held to have lawfully terminated her contract of employment.

The respondent in response submitted that;

The Arbitrator in the 2nd hearing considered the submissions and evidence tendered by the parties.  The submissions tendered by the appellant in the 2nd hearing were after thoughts and had no merits.

The annual shutdown was for a period of (2) two weeks not 30 days.  Hence for the whole period of 7 years which the respondent had worked for appellant, respondent had been accumulating 2,33 weeks of vacation leave each year.  Hence the Arbitrator’s finding is correct.

The arbitrator dealt with all the issues raised by the Labour Court.

Arbitrator awarded salary arrears as respondent had been placed in the wrong grade.

Respondent prayed that;

The appeal be dismissed.

The appellant be ordered to comply with the arbitral award.

The issues to be decided in this case are whether

The Arbitrator dealt with all the issues that the Labour Court ordered her to deal with.

The Arbitrator erred by determining the issue of unfair dismissal on the basis of the previous award and not on submissions made by the appellant after the matter had been re-directed to her by the Labour Court.

The Arbitrator erred by awarding (90) ninety days cash in lieu of leave.

Whether respondent was supposed to be paid $299,87 during the period that she was on leave.

Whether The Arbitrator dealt with all the issues directed by the Labour Court to be dealt with

The appellant has not pointed out the issues which the Arbitrator did not deal with.  Upon reading the arbitral award this court found that the arbitrator dealt with

unfair dismissal

non-payment of outstanding salary arrears

payment of salary whilst on maternity leave.

Annual leave days and

Terminal benefits

However having found that respondent was unfairly dismissed she should clearly state the respondent’s fate i.e.

whether she was to be reinstated and if not re-instated what she was supposed to get.

This then should have included damages in-lieu of re-instatement, all the outstanding wage arrears and days cash in lieu of leave.

Whether the Arbitrator erred by determining the issue of unfair dismissal on the basis of the previous award

The arbitrator in his analysis stated that;

“The issue pertaining to unfair dismissal was comprehensively dealt with in the initial arbitration and the award reads as follows;

‘After assessing the submissions by both parties I therefore award that the employee be and is hereby re-instated to her original position without loss of salary and benefits.  If the respondent so wishes he may proceed with the disciplinary hearing against the employee using the correct code of conduct i.e. SI 301 of 1996.’

This means that the employee remained an employee of the respondent because the proceedings that were done in terms of SI 15/2006 were nullified.  The employer did not comply with the award.  It therefore means that to date the complainant remains an employee of respondent.

The appellant in its submissions admitted that it wrongly dismissed the respondent.  It alleges that it went on to charge respondent in terms of the National Employment Code of Conduct SI 15/2006.  However the Engineering Industry has its own disciplinary Code of Conduct SI 301 of 1996.  The appellant was suppose to use this Code of conduct in dealing with the respondent’s case.  Thus therefore nullifies all the proceedings that were used by the appellant.

The arbitrator in the second proceedings stood by this finding.  The fact still remained that a wrong code was used in charging the respondent.

“2	An employee is unfairly dismissed.

if subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code or

in the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).”

In this case a code was used but it was the wrong code therefore the dismissal remains a nullity.

Entitlement To (90) ninety days cash in lieu of Annual Leave

The respondent submitted that she never went for annual leave during the whole period that she was employed by the appellant.  This therefore meant that for 7 years she never went on leave. Appellant on the other hand stated that on the issue of annual vacation leave it was the company policy every year to shut down between 15 December and 15 January the following year and thus consequently all employees were granted their annual vacation leave every year.  The appellant has not produced any evidence to show the company policy.  The appellant has not produced the respondent’s contract of employment that shows that the company policy was part and parcel of the contract of employment Section 14A (2) of the Labour Act has this to say about vacation leave.

“Unless more favourable conditions have been provided for in any employment contract on in any employment contract or in any enactment, paid vacation leave shall accrue in terms of this section to an employee at the rate of one twelfth of his qualifying service in each year of employment subject to a maximum accrual of ninety days paid vacation leave.”

In the absence of the company policy and the contract of employment incorporation the company policy the Arbitrator did not err by believing the respondent’s story.  Given the fact that she worked for (7) seven years without going for annual leave respondent accrued more than the stipulated maximum ninety days which translates into three months salary.

Payment of Outstanding Wages

The Arbitrator found that during the period that respondent was on Maternity Leave she was paid $250,00 per month.  She stated that in terms of SI 100 of 1997 the respondent’s grade is B1 and she was supposed to earn $299,87.  The appellant has argued that there was no basis for this finding because the employee had already terminated the contract of employment by absconding. Section 6 (1) (a) of the Labour Act states that;

“No employer shall

pay any employee a wage which is lower than that to fair labour specified for such employee by law or by agreement made under this Act.”

During the period she went on maternity leave $299,87 per month was the gazette salary for Sales Representatives. Therefore by paying $250,00 per month the appellant was doing something illegal as it was paying respondent a salary lower than that stipulated by law.  The Arbitrator therefore did not err by ordering payment of arrear salaries from the time she was on maternity leave.

In view of the foregoing this court finds that the appeal lacks merit.

Accordingly it is ordered that;

The appeal is dismissed with costs.

Respondent be and is hereby reinstated with effect from date of dismissal without loss of salary and benefits. If reinstatement is no longer tenable payment of damages in lieu of reinstatement.

Appellant pays the respondent outstanding wage arrears during the time she was on maternity leave.

Appellant pays respondent 90 days cash in lieu of annual leave days.

Charamba & Partners, appellant’s legal practitioners