Mabalengwe Safari Tours (Pvt) Ltd v Nathan Kaseke

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/627/2016
HARARE, 15 JUNE 2016
CASE NO. LC/H/90/16
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/627/2016

HARARE, 15 JUNE 2016				    CASE NO. LC/H/90/16

AND 21 OCTOBER 2016

In the matter between:-

MABALENGWE SAFARI TOURS (PVT) LTD			Appellant

And

NATHAN KASEKE							Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr O Marwa (Legal Practitioner)

For Respondent		MR C Mucheche (Legal Practitioner)

CHIDZIVA, J:

The appellant in this matter has filed an appeal against the award that was delivered by Honourable Arbitrator J Zhakata.  In addition the respondent has filed a cross appeal against part of the Arbitration award.  The Arbitration award states as follows:

“In the result the award is made.

The claimant’s termination be and is hereby found to be was unlawful.

Respondent be and is hereby ordered to pay the following

Salary arrears			$ 3 900.00

Outstanding salaries		$ 4 200.00

(Oct 2013 – March 2014)

4 Months damages for 		$ 2 800.00

Unfair loss of employment

Grand Total				$10 900.00

This award shall be complied with within 14 days from the date of receipt of the same.

I so award.”

The background of this matter is that the respondent was employed by the appellant as a Camp Manager on 1st April 2012 on a salary of $700,00.  There was a breakdown in the employment relationship.  The respondent filed a complaint of unlawful dismissal with the Labour Officer Conciliation failed and the matter was referred for arbitration.  The terms of reference that were brought before the Arbitrator are;

“(1)	Whether or not respondent was unlawfully dismissed;

(2)	Whether or not the respondent is owed arrear salaries; and

(3)	The remedy thereof.”

The arbitrator then made the award which is being appealed against.  The appellant has raised the following grounds of appeal.

The Honourable Arbitrator erred and seriously misdirected himself on a question of law by making a finding that respondent was unfairly dismissed.  Such a finding was contrary to the evidence led.  The arbitrator erred in relying on text messages and telephone conversations which were not verified with the relevant service provider.  In the absence of testing the veracity of this evidence it was improper for the arbitrator to rely on it in his findings.

The Honourable Arbitrator erred by finding that March 2014 was the effective date of termination.  Such a finding was unreasonable given that respondent’s last date of employment was 30th September 2013 when his leave expired.  It therefore follows, that the award of arrear salaries for the period between October 2013 to March 2014 was not only irregular but had no legal basis. It was premised on an erroneous finding which could not be supported by evidence.

The Honourable Arbitrator’s approach in awarding damages for unfair loss of employment in the sum of US$2 800,00 was wrong and his consequent ruling unreasonable.  He merely plucked a figure out of a hat without determining how long it would have taken respondent to find alternative employment.  No evidence was led to quantify the damages.

The Honourable Arbitrator erred in awarding damages for unfair loss of employment without first ordering reinstatement which is the primary remedy and the order damages as an alternative to reinstatement.  Such an award is a nullity.

The respondent in response stated that;

The 1st ground of appeal is invalid at law because

Appellant just instructed the respondent not to report for work.

The appellant stopped paying the respondent’s salary after ordering him not to report for work.

At the time that the appellant ordered the respondent not to come for work, the appellant already owed the respondent $3 900 in respect of arrear salaries for months which the respondent had worked.

Alternatively the appellant never challenged the transcribed text messages when they were produced, and the texts are still there in the respondent’s phone to date.

Ad Ground No.2

The finding that March 2014 was the effective date of termination was one in favour of the appellant, as the respondent’s contention is that this contract was never terminated, and back pay should have been paid up to the date of the arbitral award and damages calculated from that date.

Ad Ground No.3

The award of $2 800 is premised on a period of four months.  The respondent contestation is that the finding was really in favour of the appellant as he remains unemployed up to date and refers to his cross appeal.

Ad Ground No.4

The failure to order reinstatement does no invalidate the award, as the appellant has not even offered to reinstate the respondent.

The respondent therefore prayed for the dismissal of the appeal.

In the cross appeal the respondent cited the grounds of appeal as follows;

In view of the fact that the appellant never lawfully terminated the respondent’s contract of employment, the arbitrator erred at law by setting the end of March 2014 as the date of the termination of employment, instead of the date when the arbitral award was rendered which is 2 February 2016.

The period of (4) months is not on the evidence placed before the learned arbitrator the reasonable time by which the respondent could obtain alternative employment.  To that extent, the learned arbitrator misdirected himself at law by not awarding damages for a period of 24 months to be reckoned from 2 February 2016 which should be in the sum of US$16 800.00.

On these grounds the respondent prayed that the award be set aside in respect of the outstanding salaries and damages for unfair loss of unemployment.

The respondent further prayed that the award should be substituted with the following;

“(i)	In respect of back-pay, the employer is ordered to pay the claimant his salary for the months of October 2013 to 2 February 2016 in the sum of US$ 19 600.00 calculated by multiplying the monthly salary of $700 by 28 months.

In respect of damages for unfair loss of employment the employer shall pay the sum of US$16 800.00 representing a salary period for a period of 24 months being the period by which the claimant could reasonably obtain alternative employment.

((iii)	The total amount due to the claimant by the respondent employer, inclusive of the $3 900 arrear salaries, is therefore in the sum of   US$40 300.00.”

The appellant did not file a notice of response to the cross-appeal.  This therefore means that the cross-appeal is not opposed even though the appellant has filed heads or argument addressing the main and cross appeals.

At the beginning of the hearing the parties through their lawyers further indicated that they had conferred to narrow down the issues to be decided.  The issues are as follows;

Whether the employer-employee relationship subsists or was terminated by resignation.

Whether or not the respondent is entitled to be paid arrear salaries and the quantum thereof.

Whether the Employer-Employee relationship exists or was terminated by resignation.

The appellant has argued before this court that respondent repudiated the contract after some anomalies were discovered.  It was submitted that in August 2013 reconciliations were done in respect of game meat that is left by game hunters as well as cash handled by the respondent. Respondent was advised about the anomalies.  In September 2013 respondent then asked to go on leave and at the end of September 2013 he advised the Managing Director of respondent, Mr M Madangure that he was resigning and he never came back.  The appellant further stated that the respondent resigned in a bid to avoid the disciplinary processes and criminal charges which the appellant wanted to institute after he had misappropriated meat and cash had been unearthed.  Respondent repudiated the contract and the repudiation was accepted by the employer.  It was appellant’s submission that the respondent alleged that he was dismissed but failed to state the basis of the dismissal.

The respondent also argued that the evidence to establish that respondent had resigned was neither proved by the appellant nor placed before the Tribunal.  The Tribunal used text messages and calls from appellant to respondent which showed that respondent never resigned but that he wanted to come back to work.

It is a trite principle of law that in civil proceedings he who alleges should prove the allegation.  This was stated in the case of Astra Industries Ltd v Peter Chamburuka SC 27/2012 where the Court held that;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

The case of Mobil Oil Southern Africa (Pvt) Ltd vs Mechin 1965 (2) S 706 at 711 E-D also stated that “… he who seeks a remedy must prove the grounds thereof”.

The appellant has appealed against the arbitral award stating that respondent resigned of his own accord and appellant was not liable for anything.  The appellant did not adduce any evidence to show that respondent went on eave and subsequently resigned from employment.  The appellant has not adduced any evidence to show the date that respondent resigned.

Annexure “C” filed of record shows that the respondent was communicating with the appellant through Mr Madangure up until the 29th March 2014. The text messages were not disputed at arbitration.  The text messages and call schedules indicated that the respondent was still an employee of the appellant and that he was owed money by the appellant.

This court further agrees with the arbitrator’s findings when he said that;

“That the claimant resigned on his own accord has no shred of fact accompanying it.  How the respondent could have approved vacation leave for someone who was facing disciplinary and criminal charges is questionable and this argument cannot persuade this Tribunal.”

Instead of approving leave and accepting the resignation the appellant should have charged the respondent and also caused his arrest for the anomalies that had been unearthed.

The evidence on record tallies with the respondent’s claim that in October 2013 he was told not to report for duty.  This is why in the last text message in March 2014 he was asking whether he is still an employee of Mabalengwa Safaries.  He then stated that by 29 March 2014 he was being owed US$8 800.00 in unpaid salaries.

This court also wonders why the appellant being a company which kept records of cash and other resources failed to keep record of leave applications and resignations on termination of contracts.  If respondent did not come back for work at the beginning of October what did the company do about it to register the so called repudiation of contract.

In the circumstances therefore the respondent did not resign.  The appellant failed to provide the respondent with work. In the case of National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Ors SC 8/25 it was stated that;

“At common law the obligation of an employer to pay wages is dependent upon performance by the servant of the work that he contracted to do.  Thus in The Law of Master and Servant in South Africa by Norman Scoble at p 203 the author states

The legal obligation of an employer to pay wages is dependent entirely on the Servant having performed his part of the contract in rendering the service stipulated for by the parties.  The basis is no work no pay (unless the Master is to blame for failing to provide any work for the servant to perform) (Vadasz v Cohen 1993 TPD 100)”.

The respondent remained available for work but appellant did not provide the work.  According to the respondent he was told not to report for work sometime in October 2013.

Whether or not the Respondent is entitled to be paid arrear salaries and the quantum thereof

From the evidence before this court it is clear that the employment relationship continued until the date of the arbitration award.  The appellant therefore awarded the respondent arrear salaries until the date of the award.  The Arbitrator therefore should have ordered payment of salary arrears and if appellant failed to comply this would amount to dismissal which would then trigger payment of damages.

The Arbitrator therefore erred by ordering the appellant to pay damages in lieu of reinstatement.  The claim for damages should have run from 2 February 2016, the date of the award.

The arbitrator therefore erred by finding that the respondent was unfairly dismissed with effect from March 2014.

To that end therefore the court finds that;

The respondent never resigned.  He remained under appellant’s employee until the 2 February 2016 the date of the award.

The respondent is therefore owed salary arrears by the appellant.

Accordingly it is ordered that;

The appellant’s appeal be and is hereby dismissed.

The cross appeal be and is hereby upheld.

The appellant is to pay salary arrears to respondent by 30 October 2016.

Appellant to lawfully terminate the contract of employment by 30 October 2016.

If appellant fails to pay the salary arrears and lawfully terminate the contract of employment by 30 October 2016 the respondent would be deemed unfairly dismissed and entitled to damages in lieu of reinstatement.

In the event of respondent being unfairly dismissed the matter is remitted to the Arbitrator for quantification of damages.

Appellant shall pay costs.

Rubaya & Chatambudza, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners