Munyaradzi Gara v Leered Fashions and Rhys Goga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/121/2020
HARARE, 15 OCTOBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/121/2020

HARARE, 15 OCTOBER 2019		              CASE NO. LC/H/LRA/237/19

AND 5 JUNE 2020

In the matter between:-

MUNYARADZI GARA				Applicant

And

LEERED FASHIONS				1st Respondent

And

RHYS GOGA					2nd Respondent

Before Honourable B.S. Chidziva, Judge

Applicant				In person

For 1st Respondent		Mr T. Goro (Legal Practitioner)

2nd Respondent			In Absentia

CHIDZIVA, J:

This is an application for confirmation of the draft order by Designated Agent Gara that was handed down on the 29th of May 2019.

The brief facts are that the 2nd Respondent was employed by the 1st Respondent. The 2nd Respondent approached the NEC with the issues of            non-payment of wages, under-payment of wages, vacation leave and notice pay. The 2nd Respondent was awarded $2 079-75 being underpayment of wages. Non-payment of wages, vacation leave and notice pay.

When the parties appeared before this court the 1st Respondent argued that,

The 2nd Respondent was not entitled to payment of vacation leave days because he had not completed his first year of employment.

The 2nd Respondent is not entitled to notice pay because the remedy for unlawful termination of employment is reinstatement and in lieu of therefore payment of damages.

The 2nd Respondent was not dismissed. He repudiated his contract by not reporting for duty. The whatsapp message was not produced before the Applicant to confirm 2nd Respondent’s submission that he was advised not to report for duty by 1st Respondent.

No evidence was led to prove that the 2nd Respondent was employed as a watchman. He was employed as a general worker.

There is no strict principle of law that a contract of employment should be in writing. Verbal contract of employment should be in writing. A verbal contract is as binding as a written contract.

The 1st Respondent prayed for the dismissal of the applications based on these reasons.

It is common cause that,

The 1st and 2nd Respondents owed the 2nd Respondent were in an employment relationship.

The 1st Respondent owed the 2nd Respondent his January 2019 salary and 3 days for February 2019.

Annexure A and B which was produced as proof of payment of salaries by the first Respondent does not include the 2nd Respondent’s name.

The 2nd Respondent produced proof of payment through ecocash on pages 15-29.

What is to be decided is

Whether or not the 2nd Respondent was unlawfully dismissed.

Whether or not the 2nd Respondent is entitled to the award that was made by the Designated Agent.

Employment relationship

The 1st Respondent initially denied even employing the 2nd Respondent. It later admitted that it had employed him as a general worker.  Section 24 of S.I. 45/1993 provides that an employer is obliged to inform every employee in writing on engagement of the nature of the contract of employment. The 2nd Respondent on the other hand has argued that he was employed as a watchman. In the absence of a written contract this court will take it that the 2nd Respondent was employed as a watchman. The 1st Respondent has also argued that it paid the 2nd Respondent above the stipulated rates but it did not adduce any evidence to prove such payments. On the other hand the 2nd Respondents proved the payments that were made to him through ecocash and it could not be disputed that he was being underpaid.

Whether or not the 2nd Respondent was unlawfully dismissed

It has been alleged that after 2nd Respondent’s arrest he did not report for duty. The 2nd Respondent submitted that he did not report for duty because he had received a whatsapp message for duty. The 1st Respondent therefore argued that in the absence of this whatsapp message the 2nd Respondent had repudiated his contract of employment.

Munyaradza Gwisai in his book “Labour and Employment Law in Zimbabwe” page 153 have defined repudiation as follows,

“Repudiation is when a party, by its conduct shows an intention no longer to be bound by the contract or its conduct is inconsistent with its continuation. It may be an instance of material breach of the contract.”

The 2nd Respondent has argued that his failure to report for duty was not voluntary but it was after instruction Section 12B of the Labour Act states that,

“(1)	Every employee has the right not to be unfairly dismissed.

(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 in terms of Section 101 (9).”

There is nothing on record to show that the 2nd Respondent was dismissed in terms of an employment Code. In the circumstances this court finds that the 2nd Respondent was unlawfully dismissed.

Whether or not the 2nd Respondent is entitled to the award that was made by the Designated Agent

It has not been disputed that 2nd Respondent was not paid his January 2019 salary and 3 days in February 2019. A watchman grade 2 was entitled to a salary amounting to $269-00.

Non Payment of Wages

The Respondent was therefore entitled to

January 2019			-	$318-00

February 2019 (3 days)	-	$318 X 3

26

=	$32-08

Total Non Payment of wages $318-00+ $32-088

=	$350-08

Under Payment of Wages

It is this court’s view that the 2nd Respondent was underpaid for the period April 2018 to December 2018 and he is entitled to the $664-00 as calculated by the arbitrator.

Compensation for loss of employment

Section 12 (c) (2) of the Labour Act states that compensation for loss of employment is two weeks salary for each year completed. The applicant was employed on 4 April 2018 and was dismissed on 3 February 2019. He had not completed a year under the employee of the Respondent. In the circumstances therefore he is not entitled to any compensation.

In the circumstances therefore it is ordered that,

The application for confirmation of the draft ruling by Designated Agent M Gora be and is hereby granted.

Respondent is ordered to pay Rhys Goga a total of $2079.75being

Underpayment of wages		-	$664-00

Non payment of wages		-	$350-08

Vacation leave			-	$231-67

Notice pay				-	$834-00

Respondent is to comply with ruling within 30 days of receiving it.

Mbidzo, Muchadehama & Makoni, 1st Respondent’s Legal Practitioners