Pfavaz Bottle Store v Mary Zvidzai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/765/2014
HARARE, 30 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/765/2014

HARARE, 30 OCTOBER 2014		     	      	     CASE NO. LC/H/177/14

AND 21 NOVEMBER 2014

In the matter between:-

PFAVAZ BOTTLE STORE					Appellant

And

MARY ZVIDZAI						Respondent

Before Honourable L.M. Murasi, Judge

For Appellant	Mr. S. Chako (Legal Practitioner)

For Respondent		Mr. J. Mawopa (Trade Unionist)

MURASI, J:

Respondent was employed by the Appellant as a Bar Assistant/Assistant Cashier.  It is alleged that Appellant verbally dismissed her resulting in the matter being referred to conciliation.  Conciliation failed and the matter was referred to arbitration.  The Arbitrator found in favour of the Respondent.  The Appellant is not satisfied and has appealed to this Court.

Appellant’s ground of appeal is that the Arbitrator erred at law by holding that the Respondent was unfairly dismissed and at the same time finding that the Appellant should have charged the Respondent with absenteeism and conducting a disciplinary hearing against same.

At the commencement of the proceedings Respondent’s representative raised a point in limine in that the grounds of appeal were not on a point of law as required in terms of section 98 (10) of the Labour Act [Chapter 28:01].  The Court dismissed the point in limine stating that the full reasons would follow.  Respondent’s representative was unable to demonstrate in what manner the grounds of appeal had failed to satisfy the threshold required in terms of the statute.  The submissions were a bare allegation without supportive substantive details as in what manner they failed being points of law.  It should be noted that a point in limine should be supported by facts and details showing that the grounds of appeal lacked the requisite material to satisfy the statutory requirement.

Appellant’s Counsel submitted that he largely abided by the Heads of Argument filed of record.  It was stated that the Arbitrator had erred in the finding that Appellant should have instituted disciplinary proceedings when Respondent had absented herself from work.  It was further argued that Respondent had, by conduct, unilaterally terminated the employment relationship and therefore there was no need to institute the disciplinary proceedings against her.  Appellant’s Counsel referred the Court to decided cases dealing with the point in issue.

Respondent’s representative submitted that the Arbitral award was properly made.  It was further submitted that Appellant had verbally dismissed the Respondent without following the statutory requirements.  Respondent’s Representative further argued that Appellant was enjoined to utilise the Code of Conduct in dealing with the Respondent.

Precedent has dictated that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection.  (See INNSCOR AFRICA (PVT) LTD vs LETRON CHIMOTO S 6/2012; HAMA vs NRZ 1996 (1) ZLR 664 (SC)).  Having stated the legal position, the Court will proceed to examine the Arbitrator’s finding.  The first issue the Arbitrator was called upon to determine was whether there was an underpayment of wages.  Respondent had claimed that she had been paid $240,00 instead of $272,00.  The Arbitrator summed up the issue of underpayment as follows:

“Complainant submitted that she was being underpaid however Respondent disputed the claim and produced complainant’s offer letter to substantiate that Complainant was receiving a monthly wage of USD270.  Complainant argued that she was never given an offer letter by Respondent and her monthly salary was at USD 246.

The offer letter submitted by Respondent is not evidence sufficient enough to prove that complainant was not being underpaid.  Respondent should have submitted proof of payment from the bank or a payslip/wages book hence I give the Complainant the benefit of doubt.”

This is where the Arbitrator fell into error.  It was for the Respondent to prove that the wages that she had received were below those stipulated in the Collective Bargaining Agreement.  It is trite that he who seeks a remedy must prove the grounds therefore (See BOOK vs DAVIDSON 1988 (1) ZLR 365.)  It is also a truism that where a litigant fails to discharge the onus a court or tribunal cannot discharge the onus for them.  I associate myself with the following observation in ASTRA INDUSTRIES LIMITED vs PETER CHAMBURUKA S 27/2012 that:

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.

The respondent, before the Arbitrator, did not produce any evidence to support the allegation that she had been underpaid.  She merely made a bare allegation.  This was obviously insufficient.  On the other hand, Appellant produced a letter which was stated to be the basis of the contract of employment.  The Arbitrator states that that this was insufficient evidence to prove that Respondent was not being underpaid.  It however was evidence to show what Respondent had contractually agreed to receive from Appellant.  The Arbitrator was in no position to state that this was “insufficient” evidence from the Appellant when there was “no evidence” from the Respondent.

The Court will proceed to examine the issue of unlawful dismissal.  It was submitted before the Arbitrator and this Court that Respondent was verbally dismissed by the Appellant.  The Arbitrator makes the following finding:

“Respondent’s action are not justified and I am persuaded to believe that complainant was verbally dismissed from employment.”

Respondent had averred that she had been verbally dismissed on 28 March 2012.  A look at the details would unravel the issue as to whether the Arbitrator arrived at the correct decision or not.  Respondent made submissions before the Arbitrator to the effect that:

“On 28 March 2012 the Claimant was verbally dismissed on allegations of a US$1300-00 short.  Under the practice of the shop the Claimant would do stock take soon after shifts but the one alleged to have unearthed this short was done during the absence of the claimant hence no reasonable person will accept results of such dubious stock take.”

A reading of the record shows Appellant’s submissions on this point to show that two  stock-takings were made.  One was for the period from 29 February 2012 to 6 March 2012.  The second was from 15 March 2012 to 20 March 2012.  These two stock-takings produced different results.  In a memorandum dated 26 March 2012, Appellant brings Respondent’s attention to the shortfall.  Most importantly Appellant states as follows in that letter:

“You are therefore with immediate effect removed from the cash and saving (serving) areas to mitigate further losses until the conclusion of your employment status.

Feel free to review the stock analysis done to ensure that you understand the allegations you are facing.”

Appellant had indeed taken remedial action by removing Respondent from the areas involving the cash.  Appellant had even invited Respondent to examine the books.  The Arbitrator did not take this evidence into consideration when determining the issue whether the Respondent was verbally dismissed by the Appellant.  The Arbitrator seemed to rely on Respondent’s “say-so” without considering the submissions and evidence produced by the Appellant.  The Appellant had produced evidence that he had written to Respondent about the shortfalls and immediately removed her from the duties that she was performing.  The memorandum does not state that Appellant was dismissing her from employment.  Did Respondent effectively prove that she was verbally dismissed on 28 March 2012?  I think not.  The Arbitrator erred in not weighing the evidence that was presented.  Respondent did not produce any evidence to prove the allegations.  On the other hand, Appellant produced evidence to rebut Respondent’s averments.  Respondent’s allegation that a stock-take was taken in her absence seems not to be borne out by the memorandum produced by the Appellant.  Two stock-takings depicting two different periods were made.  The resultant total is what caused Appellant to write to the Respondent.  The Court is of the view that the Arbitrator erred in making a finding of fact which was not supported by the evidence.  (See RESERVE BANK OF ZIMBABWE vs CORRINE GRANGER & ANOR SC 34/2001).

In conclusion the Court is of the considered view that this is one of those cases where the decision of the lower court has to be set aside.

In the result, the Court finds the appeal to be with merit and it is accordingly allowed.  The Court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of T. Mlilwana dated 23 January 2014 is hereby set aside.

There is no order as to costs.

MUSHANGWE & COMPANY, Appellant’s legal practitioners