Mixnote Investments (Private) Limited V Moses Maruva & L.n. Gabilo N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/45/25
HARARE, 02 FEBRUARY, 2025
CASE NO. LC/H/1198/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/45/25 HARARE, 02 FEBRUARY, 2025		CASE NO. LC/H/1198/24

MIXNOTE INVESTMENTS (PRIVATE) LIMITED	APPLICANT

Versus

MOSES MARUVA	1ST RESPONDENT

L.N. GABILO N.O.	2ND RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- T. Gumbu	 Legal Practitioner For the 1st Respondent	- L. Pwanyiwa	Unionist

For 2nd Respondent	-No  Appearance

KUDYA J:

On 03 February 2025 this court dismissed with costs an appeal that had been filed by the appellant employer in a labour dispute pitting the employer and the employee. The court indicated that full reasons for the order could be availed on request. The employer has made a request for such reasons. These are they:

The background to the matter is that the employee approached a labour officer for conciliation and the matter was escalated to arbitration for determination. The issue before the employer and the employee was that the employee had not been paid overtime and stand by allowances during his employment with the employer. There was also an issue that the employer

had not been remitting the employee’s pension contributions to the Pension fund. The arbitrator ruled that, on a balance of probability the employee had not been paid his overtime and stand by allowances. He also deferred the pension issue to the Pension fund to compute that. The employer was not happy with the disposal of the matter by the arbitrator. It therefore appealed to this court which appeal failed as borne out by the order which is the subject of this judgment.

On appeal before this court the employer raised 5 issues which can be summarised as follows;

The truthfulness and accuracy of the payment records was not assessed by the arbitrator on a balance of probability. Resultantly arbitrator failed to find that the employer had paid overtime and stand by allowances to the employee.

Arbitrator erred by shifting onus to the employer. The employee should have proven nonpayment of overtime and standby allowances.

The employee did not prove his entitlement to overtime and standby allowance so arbitrator should have dismissed the claim.

The employer complied with section 12 5 Labour Act on record keeping. The arbitral tribunal should have found that employer provided such records in relation to overtime and stand by allowance.

Arbitrator erred to defer the computation of the statutory obligation to a 3rd party that is the Mining Industry Pension Fund. He should have computed what should have been paid on employee’s behalf to the Pension Fund.

In the result the employer prayed that the appeal be allowed, that the arbitral award be set aside and that the employer be ordered to pay USD 140 and ZIG 26 35, 54 as pension contributions to the Mining Industry Pension Fund on behalf of the employee.

In response to the appeal the employee responded in summary as follows:

In limine he prayed that the appeal be struck off on account of the fact that the employer had not complied with rule 19 (1) (b) (ii) Labour Court Rules by not availing the record and minutes of proceedings giving rise to the appeal.

On the merits plane, he started off with the narrative that he was discharged on April 2024 and that on October 2024 the arbitrator ordered payment on overtime, underground and stand by allowances. Arbitrator was correct to order as he did because the employer failed to give evidence to rebut the claims. Deferment of pension computation to the Pension Fund was within the arbitrator’s power. There is no legal basis for the appeal. All averments made on the appeal were denied. In the result he prayed that the appeal be dismissed with costs on the higher scale.

On the hearing date of the appeal the employer dropped the point in limine vis absence of the record of proceedings as this was now on file as at the date of the hearing of the appeal.

The dropping of the point in limine therefore left for resolution only the merits of the appeal.

It is granted that a number of appeal grounds were filed by the appellant but these can be summarised as only 2 that is whether it was proper for arbitrator to rule that the employee be paid overtime and stand by allowances and whether it was proper for arbitrator to defer the pension issue to the Pension Fund. Being this as it may all the appeal grounds will be discussed below.

Accuracy of payment records

It is the employer’s contention that it showed the arbitrator payslips which showed that the sought after allowances had been paid. Commenting on the tendered payslips, the arbitrator observed that, all these payslips bore a similar date even though they referred to different pay periods. The employer reasoned that such a scenario was occasioned by the fact that these were generated on a single day. Arbitrator doubted such a suggestion as it would not make sense that all the payslips would have a single date if at all they did exist at each and every period of pay reflected in them. He found it absurd that the payslips would have such a single date as stated if at all they did exist at the time of the alleged payments. His conclusion was therefore that such payslips were fictious and were only generated to thwart the employee’s claim. He therefore had no basis not to accept the employees claim. The critical question on this ground is: Can it be said that the arbitrator’s conclusion was outrageous? See Hama vs NR Z 1996(1) ZLR664(S)

Certainly not. Any adjudicator faced with the same facts of single dated payslips being used to confirm payment of an employee’s dues would have the same doubts as those entertained by the arbitrator. There would therefore not be any legal basis to ask that the arbitral decision be vacated. It is settled that decisions of triers of fact cannot be lightly interfered with See Nyahondo vs Hokonya and others 1997(2) ZLR457. As stated above, the court finds no fault with the conclusions arrived at based on the veracity of the payslips. The ground being without merit should thus fail.

Shifting onus

It is settled that he who alleges must prove See Tredcor Zimbabwe Pvt Ltd v Marecha HCH 558/22. It is equally settled that an admitted fact deserves no evidence to prove it further, See Delta Corporation Ltd v Forward Wholesalers Pvt Ltd and Another HCH53/17. In the case at hand, the employer admitted that indeed the employee had an entitlement to the allowances that he claimed. Its defence was however that, it had paid same. It said its proof of payment were the payslips that it tendered. What is apparent from the above set of facts is that, once the employee admitted that the employee indeed had to be paid claimed allowances it thus became unnecessary for the arbitrator to ask the employee to favour him with time sheets ete to show the admitted entitlement. It was an admitted fact that needed to be dislodged by the proof of payment. There was thus no shifting of onus complained about by the employer. The duty at that stage fell on the employer to prove payment. It failed to do so as its payment proof had dates which arbitrator concluded was a farce. The ground is thus equally with at merit so should fail.

Proof of entitlement to overtime

This ground is intricately linked with ground 2 above Sentiment expressed in ground 2 apply to this ground with equal force. There was no need for the employee to prove an admitted fact. See Delta Corporation (Supra) The ground being without foundation should thus fails.

Compliance with Section 125 Labour Act. The Labour Act obliges an employer to keep all employment records See 125(1) which reads: “Every employer upon whom any agreement , determination or regulation is binding under this Act in relation to remuneration to be paid ,time to be worked or other such particulars as may be

prescribed SHALL (my emphasis) at all times keep , in respect of all persons employed by him , records of the remuneration paid , of the time worked and of those other particulars	" As indicated in grounds 1 to 3 above the records which employer says it

kept and used to prove payment were doubted by the arbitrator and rightly so for reasons already explained. There was thus no fault on the arbitrator to conclude that the employer failed to comply with the requirements of Section 125 (1) of the Labour Act. The ground being without merit should also fail.

Pension

It is settled that pension calculations etc are in the domain of the Pension Fund. See Section 12 Arbitration Act Chapter 7:15. In the case at hand, the employer conceded that it did not remit the employee’s pension contributions to the Pension Fund. It was therefore up to the Fund to deal with the pension aspect and determine what had to be paid to it and what had to be paid out to the employee. There was no abdication of function by the arbitrator in relation to the pension issue as complained of by the employer. What the arbitrator did was clearly in keeping with his arbitral powers See sect 12 Arbitration Act (Supra) The ground is without foundation so it should fail.

In the ultimate all appeal grounds being without merit as demonstrated above should fail.

Costs

The employee prayed that the higher costs scale be adopted in the disposal of the matter. The court is not persuaded that such a scale is warranted as there is nothing exceptional about an employer trying to exercise it appellate rights. For punitive scale costs See Mahembe v Matambo 20003(1) ZLR149. The matter is a simple case of an employer whose view is that arbitrator erred by not accepting its defence. It was of the view that the Labor Court would agree with it. That however did not happen. The fact that the Labour court did not agree with the employer cannot be a foundation for invoking the punitive costs scale The payer for the punitive costs scale is accordingly dismissed. The ordinary costs scale shall therefore be used.

It is in the light of the above that order LC/H/100/25 dismissed the appeal with costs on the ordinary scale as borne out by the full text of this judgment setting out the reasons as so ordered.

Manokore Attorneys	Appellant’s Legal Practitioners