Maranatha Christian High School v Cynthia Gambiza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/335/2016
HARARE, 29 FEBRUARY 2016
CASE NO. LC/H/850/15
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/335/2016

HARARE, 29 FEBRUARY 2016			  CASE NO. LC/H/850/15

AND 27 MAY 2016

In the matter between:-

MARANATHA CHRISTIAN HIGH SCHOOL		 		Appellant

And

CYNTHIA GAMBIZA							Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr I. Mataka (Legal Practitioner)

For Respondent		Mr W. Madya (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the arbitral award by Honourable S Nehohwa that was handed down on 7 September 2015.  The award states as follows;

“In light of the analysis above, I make the following,

That the claimant is entitled to payment of her salary arrears of $1 679 and cash in lieu of $3 358.  Therefore the respondent shall pay a total of $5 037 to claimant as salary arrears and cash in lieu of leave.

That in the circumstances the claimant was not obliged to give 3 months’ notice.

I so award.”

The brief background of the matter is that

The respondent was employed as a teacher by the appellant for the period from 1 January 2012 and she resigned from employment on the 13th of January 2015.

She left without giving three months notice to terminate her employment.

The appellant did not pay respondent her outstanding salaries and leave days.

The dispute culminated in an arbitration.

It is therefore against this arbitral award that appellant is appealing against.

The grounds of appeal before this court are as follows:

The arbitrator erred at law by finding that the Respondent was entitled to resign without giving 3 months notice.

The Arbitrator erred and grossly did so in finding that it is only the employer who should pay cash in lieu of notice upon termination and the employee is absolved from doing so.

The Arbitrator erred at law in finding that an employee earns vacation leave from the date of his or her engagement despite the definition of qualifying service as per Section 14 A (1) which is clear that an employee earns leave days after completion of one year service.

The Arbitrator erred at law in calculation of leave days for the Respondent.

The Arbitrator erred at law in finding that the Respondent was entitled to cash in lieu of leave days despite a contractual clause that stated that leave not taken in the year in which it is due would be forfeited and also in the face of more favourable conditions having been created by the employer substituting vacation leave.

The Respondent in response submitted that;

The grounds of appeal are unassailable in that,

There is no requirement at law for the employee to pay the employer cash in lieu of notice.

The provisions of the CBA binding on the parties in so far as accrual of contractual leave is very clean. It provides better leave conditions compared to what is provided for in Section 14A of the Labour Act.

Calculation of leave days due is a finding of fact and cannot therefore be the subject of appeal

The finding by the Honourable Arbitrator in respect of the entitlement of the Respondent to cash in lieu of leave cannot be faulted.  The contractual provision relied upon does not apply to leave days but Special Leave only.

It is common cause that

Respondent resigned without giving the three months notice.

Respondent had served the Appellant for 2 years and accrued a total of 60 days vacation leave.

The Respondent was not paid the salary for November and December 2014 by the Respondent.

What is to be decided in this matter is whether

Whether Respondent accrued any paid leave during the first year of service.

Respondent should pay the Appellant cash in lieu of notice.

Respondent was obliged to give three months notice of termination of employment.

I will start by dealing with the issue whether Respondent was suppose to give the Appellant 3 months notice.  Section 12 (4) of the Labour Act states that

“.. notice of termination of the contract of employment to be given by either party shall be ..”

This section clearly shows that either party should give notice of termination of contract.

Section 12 (7) of the Labour Act also states that

“.. where the termination is at the initiative of the employer the employee shall have a right to payment for a period of corresponding to the appropriate period of notice required in terms of subsection (4) or (5).”

From the above sections it is my view that if the employee is obliged to give three months notice it also follows that the employer has the right to payment for the corresponding period.

If the Respondent was not being paid her salaries in time the Labour Act has provisions stating the recourse to be taken for such unfair labour practices.  Labour Rules are provided for them to govern the conduct between the employer and the employee.  They should therefore be complied with Section 2A of the Labour Act states that this Act was established for the purpose of

“.. the promotion of fair labour standards. .. securing the just, effective and expeditious resolution of disputes and unfair labour practices.”

The Respondent was suppose to take appropriate procedures to recover unpaid salaries and not just leaving employment without giving the requisite three months notice.

The second issue to be decided is whether the Respondent accrued any leave days during the first year of employment and whether she should be paid for those days.

Section 14 A (2) of the Labour Act provides that

“Unless more favourable conditions have been provided for in any employment contract on in any enactment paid vacation leave 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 90 days paid vacation leave ..”

This section shows that where there are better conditions the vacation leave is dealt with not in terms of Section 14 A of the Labour Act but in terms of either the contract of employment or the collective bargaining agreement or other enactment that provides for leave conditions for such an employee than are better than what is in Section 14 A of the Labour Act.

Respondent’s contract was also regulated by the CBA – Welfare & Educational Institution 2014.  Section 22 (5) of the Collective Bargaining Agreement states that

“(5) an employee in his or her first year of employment shall accumulate normal vacation leave but shall not go on such leave during the 1st year, except with the consent of the employer.”

This clearly shows that Respondent accumulated normal vacation leave during the first year of employment.  If she accrued these leave days then she is entitled to payment unless it is provided otherwise.

The CBA also provides for both conditions than the Labour Act and should be complied with.  The Respondent is therefore entitled to payment of 60 days vacation leave.

In view of the foregoing therefore.

IT IS ORDERED THAT

The 1st ground of appeal succeeds.

The 2nd ground of appeal succeeds.

The 3rd, 4th and 5th grounds of appeal fail.

What is due to the Respondent in the form of salary arrears and leave days shall be paid after deduction of cash in lieu of failure to give three months notice.

Each party shall bear own costs.

Messrs Chambati, Mataka and Makonese, Appellant’s legal practitioners

Wintertons, Respondent’s legal practitioners