Munyati Mining Company v Tineyi Makuwe & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/604/16
HELD AT HARARE 26 MAY 2016
CASE NO
JUDGMENT NO LC/H/604/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/604/16

HELD AT HARARE 26 MAY 2016				CASE NO LC/H/22/15

& 7 OCTOBER 2016

In the matter between:

MUNYATI MINING COMPANY				Appellant

And

TINEYI MAKUWE & 8 OTHERS				Respondents

Before The Honourable Chidziva, J

For Appellant 		G Madzoka (Legal Practitioner)

For Respondents		E Chindawi (Trade Unionist)

CHIDZIVA J:

This is an appeal against the arbitral award by Honourable G Kwaramba that was handed down on 12 December 2014.  The award is couched as follows

“Wherefore after going through submissions filed of record by parties, the claimant’s case is do and hereby considered regarding overtime.  The respondent is ordered to negotiate overtime within 7 days with the claimants, failure of which either party to approach this tribunal for quantification.”

The brief facts of the matter are that  the contracts of  termination of employment filed of record indicate that the respondents were employed as security guards by CCC.

They were continuously engaged from 27 February 2009 to 30 April 2013 when their contracts were terminated.  At the end of their contract all the respondents signed full and final settlement agreement.  The settlement signed by the respondent stated that

“In exchange for the considerations set out above, I release CCC and their respective affiliates officers, directors, employees and agents of CCC (Collectively the “Releases”) from all actions causes of actions suits, debts, demands, covenants, complaints, contracts, claims, delects (both intentional or unintentional) arising in any way or indirectly linked from my employment with CCC or any other persons --.  I specifically covenant, represent and warrant to the releases that I have no further claims against the releases arising out of my employment or the termination of employment pay in lieu of such notice, severance, expenses, overtime pay --- and specifically including any claim under the Labour Act [Chapter 28:01] or any other similar legislation.”

Mrs Hazvinei who was subpoenaed to give evidence to clarify who CCC was stated that

CC was incorporated in DRC and came to Zimbabwe with the intention of running a mining company in Sanyati.

Registration was not possible as CCC was already in existence in Bulawayo

Munyati Mining was just kept as a trade name

CCC Congo is the company that employed the respondents

The company never materialised and this is why there were guards only

The  grounds of appeal before this court are as follows

The arbitrator misdirected himself on a question of law in ordering the appellant to pay overtime to the respondent where there was no evidence to support the respondents’ claim for overtime.

The arbitrator erred on a question of law in making a finding that the respondents’ alleged failure to adhere to Section 125 of the Labour Act –Chapter 28:01] was on its own a basis for granting the respondents’ prayer for overtime payment.  In so deciding, the arbitrator imposed on the appellant to prove the respondents’ claim.  The appellant had no such obligation.

The arbitrator erred on a question of law in relying on Section 125 of the Labour Act for his finding of non-payment of overtime Section 125 referred to by the arbitrator only applies to where the employer has either not kept the records or has falsified the same.  Without the benefits of a specific findings that the Time Sheet placed before him by the appellant (the respondent in the arbitration proceedings) were false, it was not open to the arbitrator to rely on section 125 of the Labour Act.

The arbitrator further erred on a question of law in failing to take into account the full and final settlement agreements signed by the respondent whose effect was to release the appellant from whatever form of liability arising from its employment of the respondent.  In ignoring this crucial piece of evidence and proceeding to order the payment of overtime, the arbitrator failed to hear and determine the matter according to law.”

On these grounds the appellant prayed that the arbitral award of G Kwaramba of

12 December 2014 be set aside and substituted with an award dismissing the claim by the respondents.

The respondents in response stated that the arbitration did not err on a question of law by

ordering appellant to pay overtime to the respondents

making a finding that appellant had the obligations to produce documents pertaining to hours worked by the respondents.

in relying on Section 125 of the Labour Act on his finding of non-payment of overtime.

It is common cause that

respondents were paid their terminal benefits after signing the full and final settlements agreements

respondents after signing these agreements and receiving the terminal benefits later filed a complaint of unfair labour practice.

the matter was eventually referred for arbitration after conciliation had failed.

The arbitrator then issued an award directing Munyati Mining to negotiate overtime pay.

What is to be decided in this matter is

Whether or not the arbitrator’s failure to take into account the full and final settlement agreement signed by the respondents was a misdirection on a question of law and if so whether or not the award issued by the arbitrator should be upset on this basis.

Whether or not the arbitrator was on the evidence placed before him empowered to make a finding that the respondents were owed overtime.

Whether or not the arbitrator committed a misdirection on a question of law in relying on Section 125 for his finding that the respondents were owed overtime.

To start with the appellant had raised a point in limine in their heads of argument

to the effect that respondent had not filed a notice of response.  However respondents later filed another paper after Chindawi & Associates had filed another paper.  The appellant at the beginning of the hearing then indicated that they were abandoning the point in limine.

Import of the full and final settlement agreement

The agreements between the respondents and CCC were agreements pactum de non petendo i.e. agreements not to sue conditional upon the payment of the agreed figure.  The respondents in these agreement undertook not to sue CCC company.  The agreement in this case was a declaration by the respondents not to sue CCC again.  The effect of such declarations was also stated in the case of Vimbai Mbeva v Rainbow Tourism Group Ltd t/a Rainbow Hotel & Towers SC 32/09.  In this case when the employer refused to reinstate the employee the employee with the full knowledge that his dismissal was unlawful went to the employees and signed a document headed “MOA”.  This document clearly stated that the employee would not have any further claims against the employee.  After signing the agreement and taking the money he came back eight days later claiming damages for unlawful dismissal.

In an appeal to the Supreme Court it was held by the Supreme Court that the agreement entered into between Mbisva and his employer

“was a declaration by Vimbai that the dispute between him and the hotel had been settled on the terms and conditions set out in the MOA.”

Respondents renounced any further entitlement to further claims.  The agreement stated that respondents were not going to have any claims against “CCC, and their respective affiliates, agents , directors, and employees of CCC (Collectively the Releases”) from all actions.”

It has been submitted in this court that Munyati Mine was just used as a trade name for CCC and CCC was not registrable.  This was because CCC already existed in Bulawayo.  The agreement stated that the respondents were not going to raise any claims against CCC’s affiliates, agents, officers and employees.  This meant that even Munyati Mining which was used as a trade name by CCC could not be sued by the respondents.  The agreement was a contract which was binding on both parties.  Respondent agreed to waive any further right to sue the appellant.

Whether respondents were owed overtime

On page 11 (paragraph 4) of the record the arbitrator acknowledged that the respondents failed to adduce any evidence to prove the overtime claimed.  In his analysis he stated that

“From the evidence presented before this tribunal the claims failed to present cogent proof in relation to their case.  The claim is far from logic considering corroborative evidence presented by the respondents that a payment of terminal benefits was effected and claimants appended their signatures in agreement that no further claims would be made in future…”

Having found this the arbitrator erred by stating that respondents should be paid overtime.  Furthermore after signing an agreement in full and final settlement the respondents did not have any further claims against the appellant.  The arbitrator therefore erred by relying on Section 125 of the Labour Act to find that the respondents were owed overtime.

In view of the foregoing therefore this court finds that the appeal has merits.

Accordingly this court orders as follows

The appeal be and is hereby upheld.

Respondent to pay costs of this appeal.

Wintertons Legal Practitioners, appellant’s legal practitioners