Memory Maganga v City of Mutare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/108/2025
HARARE, 1 OCTOBER 2024
CASE NO LC/H/775/24
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/108/2025

HARARE, 1 OCTOBER 2024		 	  CASE NO LC/H/775/24

In the matter between:-

MEMORY MAGANGA				APPELLANT

CITY OF MUTARE					RESPONDENT

Before the Honourable Kudya J

For the Appellant			In Person

For the Respondent			L. Tawuya (Principal Legal Officer)

KUDYA, J:

This is an appeal against the arbitrator’s decision where he ruled that the employer pays the employee only for the days she reported for duty between July 2023 and January 2024, quantify the wages within 14 working days of his order and make the payment within 30 days of the quantification.

The background to the matter is that the appellant who was in the respondent’s employ approached a conciliator and later an arbitrator seeking to be paid for the period July 2023 to January 2024.  The issue arose out of the appellant’s alleged absenteeism from work. The appellant argued that she was for all times on duty between July 2023 and January 2024.

The employer on the other hand, argued that, the employee absented herself on some days over the period under scrutiny.  It therefore stated that it could only pay her for the days she worked over that period based on time sheets which it claimed demonstrated the dates when appellant worked and did not work.

At arbitration the arbitrator agreed that the employee could only be paid the days she worked as set out in the time sheets. Appellant was not happy with the arbitral decision hence the appeal; which is the subject of this judgement.

She raised 3 appeal grounds to the following effect:-

Arbitrator was wrong to order payment for July 2023 to January 2024 based on fabricated time sheets.

Arbitrator was wrong to conclude that the time sheets were authentic without the primary source of data that is the log book and register which appellant recalled and signed for.

Arbitrator wrongly applied the principle of no work and no pay.

In the result she prayed that the appeal be allowed and that the employer be ordered to pay salaries for the full stretch of July 2023 to January 2024 within 14 days of the success of the appeal.

In response to the appeal, the respondent employer argued in limine that, grounds 1 and 2 were improperly before the court for the reason that the challenge was a factual one and not a legal one as envisaged by the law on  appeals from arbitration.  It hastened to mention on the merits that:-

The time sheets were not fabricated.  In any event such were not opposed in the proceedings.

Authenticity of the time sheets was never in question. The employer is the custodian of the time sheets.

The principle of no work no pay was correctly applied and was in line with the Labour Act and was appropriate in the circumstances.

In the result the employer prayed that the appeal be dismissed with costs.

On the hearing day both parties stuck to their positions vis the point in limine and the merits.  They therefore requested that the court determine both issues based on the pleadings filed of record.  The court allowed the request and indicated that it would decide on both the point in limine and the merits of the appeal at the same time and based on the pleadings filed of record. This judgement therefore addresses both the point in limine and the merits of the appeal at the same time. Each of these issues is discussed below.

Point in limine

It is settled that appeals from arbitration are on a point of law. See Section 98 (10) Labour Act.  A point of law is defined in the case of Sable Chemicals v Eastbrook SC18/10. In the case at hand grounds 1 and 2 indeed attack the factual findings of the arbitrator. In particular the appellant puts into issue the authenticity of the time sheets which the arbitrator ordered that her payment for July 2023 to January 2023 should be based on.  If the point of law test is to be used on those grounds the question which the court should answer is whether it can be said that the arbitrator’s decision that the payment be done based on the time sheets was grossly unreasonable or so irrational that no arbitrator deciding the same facts could decide as he did See Hama v NRZ1996(1) ZLR664

A reading of the arbitral decision shows clearly that the employee raised the issue that the time sheets submitted as evidence by the employer were not a true reflection of the actual days the employee attended work.  Arbitrator stated in her summary of the claimant’s submissions that the claimant alleged that the time sheets were falsified. Despite such protestation there was nowhere else in the award where that issue was argued or determined. All that is in the award is that the arbitrator took it that since Sec 125 of the Labour Act obliges employers to keep employment records and since the employer had favoured her with the time sheets it had therefore complied with Section 125 and her decision had to be based on that.

She did not at all relate to the misgiving about the sheets which had been raised by the appellant.  It is settled that a failure to determine an issue properly is a failure to determine at law.PG Industries v Bvekerwa SC53/16. Such an award is appealable.  In that light arguments raised in ground 1 and 2 therefore raised questions of law which the court should determine. The point in limine being without foundation is dismissed.

Turning to the appeal grounds, the first 2 grounds shall be entertained as one as they principally relate to the same issue.  As stated in the point in limine the arbitrator indicated in his determination that the time sheets were queried but he did not do anything to determine that issue. He simply brushed it aside choosing to just dwell on section 125. On account of the argument which had been raised and which he failed to determine he therefore failed to determine according to law See Bvekerwa Supra   His determination should therefore be vacated. The 2 grounds therefore succeed.

Ground 3

The legal construct of no work no pay is undoubted and does not deserve restatement. See Lungu v Reserve Bank of Zimbabwe SC4/24.Being that as it may, such a construct should be applied in the context of the facts in a particular case. The fact that indeed the employer is the custodian of employment records does not answer the question where the authenticity and accuracy of the document is questioned.  It is not sufficient for an arbitrator to say that because the employer keeps the employment records therefore, they are accurate where their accuracy has been put into question.

The arbitrator is duty bound to hear evidence on the challenge and made a determination of whether the challenge has foundation or has no basis.  In the case at hand no such effort was put by the arbitrator to determine the issue before he could confidently say apply the no work no pay principle to the computations which he ordered.  It is clear from the pleadings that the employee does not doubt that she cannot be paid for no work but she says the records are not accurate. That was not decided so the arbitration award is therefore expiciable in that respect. This ground therefore succeeds

Remedy

Arbitrator made an award without determining the issues properly. He therefore erred at law. His error at law has to be remedied. See Dalny Mine v Banda 1997(2) ZLR220. It is settled that the Labour Court has wide powers on appeal including causing whatever anomaly it discovers to be remedied. See Section 92 E Labour Act Chapter 28.01. In the case at hand the remedy is not an order that the employer pays for the full period of July 2023 to January 2024 but to have the matter remitted so that the argument about the time sheets is heard and determined. It is only after the   conclusion of that issue when the arbitrator can determine what the employer has to pay.

IT IS ORDERED THAT

Appeal be and hereby succeeds with costs.

The arbitral award is set aside and in its place the matter is remitted to a different arbitrator to determine the issue of the contested time sheets before a decision on what the employer has to pay can be made.