Pak Japan Motors v Peter Murahwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/695/2013
HARARE, 28 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/695/2013

HARARE, 28 NOVEMBER 2013	           	               CASE NO. LC/H/269/13

AND 14 FEBRUARY 2014

In the matter between:-

PAK JAPAN MOTORS 					    Appellant

And

PETER MURAHWA				   	   Respondent

Before Honourables  Chidziva J

Maxwell J

For Appellant		Mr E.F. Maposa (Legal Practitioner)

For Respondent		Mr E. Mudoti  (ZFTU)

MAXWELL J.;

Respondent was employed by Appellant on 25 August 2004 as a mechanic.  In October 2005 Respondent went to work in Japan.  Appellant alleges that by the time Respondent went to Japan the contract of employment had been terminated and Respondent had been given his terminal benefits.  Respondent alleges that it is Appellant who sent him to Japan to work as a workshop foreman.  Respondent alleges that it was a mere transfer and the contract of employment continued with the same terms and conditions as had been pertaining in Zimbabwe.  Respondent further alleges that Appellant continued to pay his salary in Zimbabwe dollars even though he was working in Japan.  He further claims that he only started receiving United States dollars when the country moved to multicurrency in 2009.

Respondent returned to Zimbabwe in 2010 due to ill health.  In May 2012 Respondent approached a Labour Officer alleging non-payment of leave days and allowances for the period he was working in Japan.  At conciliation the parties failed to agree and the matter was referred to compulsory arbitration.

The arbitrator rule in favour of Respondent and ordered that Appellant pays Respondent a total of $3000 as cash-in-lieu of 90 leave days for the period worked.  Payment was to be done within 14 days from date of receipt of award.

Appellant was aggrieved and approached this court on 16 April 2013.  The grounds of appeal are:

The arbitrator erred in failing to consider that she could not issue leave days for 2008 in United States dollars without proper conversion when at that time Respondent was being paid in Zimbabwean dollars.

The Arbitrator erred in failing to find that she had no jurisdiction to determine this matter and that a travelling visa could constitute an employment contract.

Respondent’s response can be summarized as follows:

There is nothing amiss with the arbitrator’s decision. Her decision was purely based on the law and backed up with authority from the Labour Act which clearly states that it is mandatory to pay wages and benefits due to an employee up to the time of such dismissal.

The Arbitrator had jurisdiction to determine the matter in that the relationship between the Applicant and respondent started in Zimbabwe.  Respondent worked for more than a year in Zimbabwe before being transferred to Japan under Zimbabwean contract.

The Respondent was taking orders from Mr Butt, the Appellant’s director, and Respondent went to Japan at the directive of the Appellant.  Appellant is the correct employer for it qualifies under the definition of an employer as enshrined in section 2 of the Labour Act.

It appears to this court that the issue in contention is whether or Respondent was employed by Appellant for the duration of the time he was in Japan.  Appellant alleged that it only helped Respondent to travel to Japan to work for Wasiyo Enterprises.  Respondent produced a business card to prove that the Appellant’s head office was in Japan and that there is also an office in Beira, Mozambique.  The Arbitrator concluded.

“The employer – employee relationship cannot, however be determined on the basis of the business card but on who actually was remunerating the Claimant for one major duty of an employer is to provide remuneration to its employee” (page 14 of record).

The arbitrator went on to conclude that Appellant was the rightful employer.  The basis of the conclusion appears on page 14 of the record.

“It has been submitted that during the Zimbabwe Dollar era, claimant was only getting paid Zimbabwean dollars even though he was working in Japan.  Such point has not been refuted by either party.  The question to arise would be how can a company in Zimbabwe provide remuneration for a person who is working in Japan for another company altogether.  Has the Respondent in this matter has not totally refuted the notion that it once employed the claimant to work in Japan, such would have made sense to try and explain the Zimbabwe dollar period.  The Respondent’s denial leaves one with the view that probably the submissions have not been made in good faith.”

The arbitrator’s conclusion is surprising on page 13 of the record she stated the Respondent’s submissions to the effect that:-

Respondent has not at any given point employed the claimant to work in Japan.

Claimant was once employed by Appellant but in Japan he was working for Wasiyo Enterprises, a district company from the Appellant.

Respondent did not address the issue of allowances and there is no room for claiming of terminal benefits because Pak Japan Motors in Zimbabwe is not aware of any accrued leave days even the rate of accrual in Japan, neither is it aware of salary that was earned in Japan.

Respondent was not able to produce anything to prove the employment relationship.  He claims there was an oral agreement which Appellant denies.  He even produced a document on “Visa Requirements to enter Japan” and claimed that Appellant put itself forward as his employer to facilitate the visa.  What we have is his mere say so as the document he produced is for public information – not the actual form one completes in applying for the visa.  Moreover Appellant acknowledges facilitating the visa on the basis of a good relationship with the former employee.  Appellant further says in pursuit of that good relationship Respondent would send money to his family and Appellant would ensure that his family got it.  In all these arrangements there is no written document to prove the nature of the relationship between the parties.

I am not satisfied that Respondent established a basis upon which Appellant should pay the leave days ordered by the Arbitrator.  It is trite that he who alleges anything against another person must prove such allegation.  Without such proof they remain allegations which do not add any weight or advantage to the one marking them.

See Zimasco (Pvt) Ltd v Chizema SC 38/07.

Appellant alleged before the arbitrator that Respondent was working for Wasiyo Enterprises in Japan (page 13 of record)  Appellant also made reference to this in its Heads of Argument (paragraphs 1.2. – 1.4, 2.1, 2.4-2.5) Respondent’s papers are silent on this issue.  There is no specific denial that he was working for Wasiyo Enterprises in Japan.  The denial only came at the hearing when Respondent’s representative mentioned that at no time did Respondent work for Wasiyo Enterprises.  The Court is of the view that the failure by Respondent to specifically challenge this averment before the arbitrator and in the Heads of Argument tilts the balance of probability in favour of appellant.

Without proof therefore that the Respondent was employed by the Appellant it is difficult to establish an what basis appellant was found to be the right Respondent before the Arbitrator.  Further without proof that Appellant and Wasiyo Enterprises are one and the same or are owned by the same person the jurisdiction to hear the matter is questionable.

As a result therefore it is a finding of this Court that Arbitrator made conclusions on allegations which had not been proved.  There is therefore a basis for interfering with the award.

The arbitrator’s award is set aside and substituted with the following:

“Respondent has no obligation to pay leave days and allowances to claimant.”

……………………………………………………

Maxwell J

…………………………………………………… I agree

Chidziva J

Chirenje,  appellant’s legal practitioners

Zimbabwe Federation of Trade Unions, respondent’s represenatives