Mutare Bottling Company (Pvt) Ltd v John Muyambo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/383/2016
HARARE, 19 FEBRUARY 2016
CASE NO.
JUDGMENT NO. LC/H/383/2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/383/2016

HARARE, 19 FEBRUARY 2016				     CASE NO. LC/H/991/15

AND 10 JUNE 2016							 LC/MC/68/15

In the matter between:-

MUTARE BOTTLING COMPANY (PVT) LTD				Appellant

And

JOHN MUYAMBO								Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr D. Tandiri (Legal Practitioner)

For Respondent		Mr A.T. Nhidza (Trade Unionist)

CHIDZIVA, J:

The Court is going to deal with the main appeal and cross appeal.

The brief history of this matter is that the employee was employed by appellant on a fixed term contract.  He was engaged on 1st November 2014 and the contract was supposed to terminate on 30 April 2015.  However the appellant terminated the contract on 30 January 2015 on notice.    Respondent was paid cash in lieu of notice.  The respondent approached the Labour officer with a case of unfair dismissal and non-payment of cash in lieu of overtime.

Parties failed to reach a settlement and the matter was referred for arbitration.

The terms of reference for arbitration were

Unfair dismissal

Non-payment of cash in lieu of overtime

The Arbitrator ruled in favour of the respondent and made the following award

“(1)	The respondent termination of contract of employment dated the 30th of January 2015 be and is hereby set aside.

(2)	The respondent be ad is hereby ordered to pay applicant salaries and benefits from date of unfair dismissal 30th of January 2015 to date amounting to a gross US$13 500,00 by the 30th of November 2015.”

The appellant is now appealing against this award on the following grounds:

The arbitrator erred at law by finding that Labour Court Rules apply to arbitration proceedings yet they only apply to proceedings before the Labour Court.

The arbitrator erred at law by concluding that the respondent had been unfairly dismissed yet his contract of employment was unlawfully terminated on notice. The arbitrator thus deliberately disregarded the Supreme judgment on Nyamande & Anor v Zuva Petroleum SC 43/15.  His finding is grossly and glaringly wrong at law.

The arbitrator erred at law by concluding that the respondent had not waived his right to challenge the termination of his contract of employment yet he accepted cash in lieu of notice and other terminal benefits.

The arbitrator erred at law by ordering the appellant to pay to the respondent salaries and benefits for the date of the alleged unfair dismissal to the date of the award.  The arbitration acknowledged that the contract of employment was supposed to terminate by effluxion of time on the 30th April 2015.  Hence there is no legal basis for the respondent to be paid salaries and benefits for the period May 2015 to October 2015.

The appellant therefore prayed that the arbitral award granted by Mr R Charindeguta on 21 October 2015 be set aside and that the respondent should be dismissed.

The respondent in response submitted that

The arbitrator can apply Labour Court Rules where there is no such similar provision in the Arbitration Act.  The arbitrator therefore rightfully found the appellant automatically barred which bar could be cured by an application for upliftment of the bar.

The Arbitrator correctly decided that there was no waiver of right when respondent accepted the money that was deposited into his bank account. This is so because appellant never agreed with the respondent let alone advise him that he was paying out cash in lieu of notice.  Respondent took it to be his salary payout since his contract of employment was still in existence.

The respondent was unfairly dismissed because the dismissal was not in terms of the employment code or the contract of employment.

The Arbitrator was correct by finding that he was entitled to be awarded the amount of wages or salaries he should have earned serve for the premature termination of his contract.   Respondent had legitimate expectation that the contract would be renewed.

Respondent therefore prayed that the appeal should be dismissed.

The issues to be decided in this matter are

Whether or not the Labour Court rules apply to arbitration proceedings.

Whether or not the respondent was unfairly dismissed.

Whether or not the respondent waived his legal right to challenge the termination of his contract of employment.

Whether or not the respondent was entitled to payment of salaries for the period 30th January 2015 to the date of the arbitration award.

Whether the Respondent was unfairly dismissed

I will start by considering whether the respondent was unfairly dismissed by the appellant.  Section 12 (B) of the Labour Act states that

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

(2)	An employee is unfairly dismissed.

(a)	if subject to subsection (3) the employer fails to show that he dismissed the employee in terms of an employment Code or

(b) 	in the absence of an employment Code, the employer shall comply with the model code made in terms of Section 101 (9)

(3)	An employee is deemed to have been unfairly dismissed.

(a)	if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”

In this case termination was caused by

The respondent’s e-mail date 29 January 2015

Failure to report for duty despite respondent’s knowledge of the urgent tasks which were to be completed.

This was clearly stated in the letter of termination dated 30 January 2015.  It stated as follows;

“Thus termination has been necessitated by your e-mail dated 29 January 2015 (attached) after which you have not reported for duty to fulfill your contractual obligations despite you being aware of urgent tasks that you were required to complete.”

The respondent and one F. Muroyiwa had complained about the intolerable tense working environment being created by their Head of Department Muroyiwa and respondent resolved to snub their duties pending the solution of their grievances.  Muroyiwa was brought before a disciplinary hearing but respondent’s contract was terminated without a hearing.

The contract of employment that the respondent signed stated that

“Employee discipline will be managed in accordance with the Mutare Bottling Company Code of Conduct –“

Misconduct issues are not solved by termination in terms of Section 12 (4) of the Labour Act but disciplinary issues in terms of Section 12 B of the Act.  This would afford an employee the chance to be heard.

The respondent was not heard in this case.  His contract was simply terminated.

Whether or not Labour Court Rules apply to Arbitration Proceedings

This issue arose from the fact that the appellant was barred due to failure to comply with the Labour Court Rules.  The appellant had failed to honour its undertaking to file heads of argument by the 14th of May 2015.  Parties had agreed to file written submissions as follows

“(1)	Respondent to file Heads of Argument on the 5th May 2015.

(2)	The appellant (employer) was supposed to file his written submissions on the 14th May 2015 and only did so on the 15th of May 2015 a day after and served applicant on the 19th of May 2015 that’s five days after.

(3)	Replication was filed on the 20th of May 2015.

Section 98 (a) of the Labour Act states that

“Effect of reference to compulsory arbitration under Parts XI and XII

In hearing and determining any dispute an arbitration shall have the same powers as the Labour Court.”

The Labour Court has powers to bar those who do not comply with the time limits.  It is then up to the barred party to apply for the upliftment of that bar.

Whether or Not Respondent’s acceptance of terminal benefits waived the Right of Appeal against the termination.

The respondent completed the clearance process on 4 February 2015 His terminal benefits were paid into his account. Respondent had been informed that he was going to be paid cash in lieu of notice upon completing the clearance process.  In the case of Chidziva & Ors v Zisco Steel 1997 (2) ZLR 368 it was stated that acceptance of termination package is inconsistent with an appeal against termination.

However this payment was done on an unfair dismissal.  In the case of Zimnat Insurance Company Ltd v Chawanda 1990 (2) ZLR 143 Gubbay ACJ stated that;

“Law in a developing country cannot afford to remain static. … If it fails to respond to (Society’s changing) needs  ... it will be cast off by the people.  ... If judges hold to their precedents too closely, they may well sacrifice the fundamental principles of justice and fairness for which they stand.”

In view of the foregoing this court finds that labour matters should not be dealt on technicalities but merits of the case.

Whether or not the Respondent was not paid cash in lieu of overtime

The respondent’s contract of employment clearly shows the working hours that he was supposed to perform his duties.  Respondent however submitted documentary evidence of the appellant’s computerized check in and check out.  There was no evidence to show how overtime would be calculated.  The appellant did not dispute this document.  Having found that the dismissal was unfair respondent is entitled to salaries and benefits up to the expiration of his contract which is 30 April 2015.  As for the overtime it can be dismissed for lack of merit. It also stated that no overtime would be paid.

The respondent has also filed a cross appeal based on the following grounds;

The Arbitrator erred at law when he dismissed appellant’s overtime claim having disregarded evidence provided to the same and also having failed to exercise his mandate in requesting the same as provided by the law.

The Arbitrator erred at law in ruling that the appellant had the onus to avail records that at law are an obligation of the employer.

The arbitrator also erred at law when he ruled that respondent’s non-compliance with the rules was a technicality which could be condoned.

The arbitrator erred at law when he established that parties were not bound by the CBA of the industry, having upheld the respondent’s assertion that the Appellant was not an NEC graded employee.

He therefore prayed for the setting aside of award.

The respondent in response submitted that;

Grounds 1 – 3 did not raise any questions of law

The appellant had the onus to prove his claim.

Appellant did not suffer any prejudice as a result of no compliance with the rules.

The respondent did not have any obligation to produce records for the purpose of assisting the appellant to prove his claim.

(4)	This ground lacks merit.  The appellant’s salary was fixed through negotiation.

The respondent prayed for the dismissal of the appeal on the grounds that it lacks merit.

In his heads of argument the appellant abandoned grounds of appeal 3 and 4.

The main issue that appellant has raised is that the arbitrator erred by not awarding him overtime.  However in all the contracts that he signed it was indicated that overtime was not going to be paid.  In the first and second contract it was stated that;

“There will be specific results to be achieved and it is expected that you manage your own time according to work requirements.  This will not be paid as overtime as, salaries include an amount for the extra hours worked.”

The 3rd contract also stated that;

“Work targets shall be met within normal working hours and no overtime shall be worked.”

It is very clear from the contract of employment that overtime was not going to be paid.  In the case of Kundai Magodora & Ors vs Care International Zimbabwe SC 245/14 it was stated that;

“In principle it is not open to the courts to rewrite a contract entered into between the parties to execute any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.   This is so as a matter of public policy.”

In terms of the caveat subscriptor rule, he is taken to be bound by the ordinary meaning and effect of the words which appears over his signature for the other party is entitled to assume that he has signified his ascent to the contracts of the document.”

The appellant endorsed his signature to the contracts which stated that overtime would not be paid.  He therefore cannot turn around and start to claim overtime because of the same relationship.

In view of this therefore this court finds that the cross appeal lacks merit.

In conclusion on both appeals this court finds that;

The cross appeal lacks merit.

On the main appeal

The respondent (employee) was unfairly dismissed.

Appellant should have applied for upliftment of bar for failing to comply with time limits.

Respondent did not waive his rights to appeal against the termination.

Respondent was not entitled to cash in lieu of overtime.

To that end therefore I order as follows:

The main appeal be and is hereby dismissed with costs.

The cross appeal be and is hereby dismissed.

The arbitral award by Honourable Arbitrator R Charindiguta dated 21st October 2015 be and is hereby upheld.

Tandiri Law Chambers, appellant’s legal practitioners