Priscillah Mgazi v Premier Tobacco Auction Floors & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/131/2020
HARARE, 23 OCTOBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE    JUDGMENT NO. LC/H/131/2020

HARARE, 23 OCTOBER 2019			CASE NO. LC/H/LRA/109/19

AND 19 JUNE 2020

In the matter between:-

PRISCILLIAH MGAZI					Applicant

And

PREMIER TOBACCO AUCTION FLOORS		1st Respondent

And

JEROME PERESUH					2nd Respondent

Before Honourable B.T. Chivizhe, Judge

For the Applicant			In person

For the 1st Respondent		Mr J.B. Chauke (Legal Practitioner)

For the 2nd Respondent		Ms M. Kaseke (Legal Practitioner)

CHIVIZHE, J:

This is an application for confirmation of a ruling made by the Applicant. The application is made pursuant to the provisions of Section 93(5a) and (5b) of the Labour Act [Cap 28:01] as amended.

Background Facts

The 2nd Respondent was employed as an Auctioneer by 1st Respondent. He was engaged on the basis of a permanent contract.  The 2nd Respondent resigned on the 22nd of January 2016. On the 20th of December 2016, he referred a claim to the Labour Officer in terms of Section 93 of the Labour Act [Cap 28:01]. He was claiming, firstly, an unfair labour practice, in that the 1st Respondent had breached the contract of employment by (1) failing to pay salaries and benefits for 10 months; and (ii) by Failing to comply with clause 3 of the contract in respect of the employee car purchase scheme. The 2nd Respondent was claiming, secondly, constructive dismissal on the basis that he had not received salarys for 10 months resulting in him being forced to resign.

In relief the 2nd Respondent was claiming for amongst other things:

Damages in lieu of reinstatement USD$20,000.00

Arrear Salaries of USD$20,000.00

Fuel benefit USD$6,600

Vehicle Maintenance $2 200

School fees for minor $1 700

Primitive Damages $20 000

Profit share

Interests of capital amounts

The 2nd Respondent’s claims were opposed by the 1st Respondent. The basis of opposition was that although the 2nd Respondent was engaged on a permanent basis, the employment itself was seasonal in nature being based on the tobacco marketing seasons. It was a common understanding between the parties that the 2nd Respondent would be at work at the commencement of every season. The 1st Respondent on this basis disputed that 2nd Respondent was entitled to any outstanding salaries/benefits for the 10 months. 1st Respondent contended that 2nd Respondent was instead on unpaid leave that period being an off-season. The 1st Respondent disputed that the 2nd Respondent had signed the relevant leave forms under duress. 1st Respondent tendered evidence to show that 2nd Respondent had voluntarily signed the leave forms. The 1st Respondent also disputed that 2nd Respondent had been constructively dismissed. The 2nd Respondent was not entitled to the 10 months salary as he was on unpaid leave it being an off-season. It was 1st Respondent further submission that the 2nd Respondent was entitled to only 24 days annual leave as per contract. On the basis contract clause he would thereafter be entitled to unpaid leave. The 2nd Respondent having in the circumstances exhausted his leave days he could not therefore have been on paid leave.

1st Respondent also submitted that the requirements for constructive dismissal had not been met in this case. Firstly, the 2nd Respondent had not established that he alone had been intentionally subjected to intolerable conditions by 1st Respondent. Secondly, the resignation had not been proved to be involuntary rather the facts indicated that the resignation had been voluntary on 2nd Respondent’s part. On this basis the 1st Respondent was not entitled to the damages as claimed.

In regards the issue of failure to purchase the motor-vehicle 1st Respondent submitted that under contract 2nd Respondent was required to initially request for the vehicle purchase agreement then he would sign on it. In this case 2nd Respondent had not placed any evidence before the tribunal to show that he had requested for the same and the 1st Respondent had refused to give him the form.

In regards the other claims it was 1st Respondent’s submission that 2nd Respondent was on leave during the relevant period. He was therefore not reporting for work. The claim was therefore unjustified. The 1st Respondent also disputed the claim for monthly vehicle maintenance costs on the basis that the 2nd Respondent himself had indicated the car was no longer in use. The claim was not justified therefore. In regards the claim for outstanding school fees of USD$1,700.00 it was 1st Respondent’s submission 2nd Respondent had been entitled to USD$1,000.00 per term.  1st Respondent however had paid USD$3,000.00 per term. 1st Respondent had therefore paid excess in the amount of USD$14,370.00. 2nd Respondent therefore owed 1st Respondent that amount. The 1st Respondent also dismissed the claim of profit share on the basis that there had been no profit share paid during the relevant period. Further, the 2nd Respondent, had not placed any evidence before the Tribunal to show that he had met the requirements for the scheme to apply as the claim was triggered on a performance based evaluation of targets.

In regards the leave forms purportedly signed under duress, the 1st Respondent submitted that the issue of duress was unsubstantiated and ought to therefore be dismissed. Lastly the 1st Respondent dismissed the claim for punitive damages as unsubstantiated. It was 1st Respondent’s submission that it was actually 2nd Respondent who was owing it in the form of USD$6,000.00 advanced as a car loan which was unrecovered; USD$19,200.00 in the form of loan advancements towards his rentals. The 1st Respondent’s prayer therefore was that 2nd Respondent be ordered to pay the sum of USD$31 650.00 USD including the excess amount paid for school fees in the sum of USD$14, 370.00.

The 2nd Respondent, in reply submitted that in relation to the issue of the contract  being seasonal in nature, the contract was clearly a permanent contract; firstly,  there was no provision in the contract indicating that the contract was applicable for the tobacco season only; secondly, that all the benefits were payale on a long term basis thus fuel and motor vehicle maintenance were payable every month; school fees were payable yearly; his leave accrued at the rate of 24 days per year which was in accordance with a full year contract rather than a seasonal contract. The 2nd Respondent further submitted that as an Auctioneer he also carried out marketing work and therefore his duties extended beyond the tobacco selling season.

The 2nd Respondent further reiterated his claim for arrear 10 months salarys. It was his submission 1st Respondent had failed to produce any proof of pay slips to show that he had actually been paid during the relevant period.  The 2nd Respondent also challenged the evidence tendered by 1st Respondent in the form of leave forms on the basis that the forms were unauthorised and; secondly they did not in any event prove that the leave was to be unpaid leave.

The 2nd Respondent also insisted that he had been forced to sign the leave forms and no mention had been made that the leave would be unpaid. The 2nd Respondent also persisted with his claim that he was not paid for the 6 months prior to his resignation. The 1st Respondent having failed to provide proof that he had in fact been paid his claim for constructive dismissal was therefore justified. Even though the facts showed he had resigned, this was as a result of 1st Respondent’s deliberate actions which made his working conditions intolerable. He had thus aptly demonstrated constructive dismissal in terms of the law.

In regards the claim for other benefits such as profit share he submitted that the evidentiary onus was on the 1st Respondent as the employer to prove that he had accorded him the benefits as required under the law. He was also entitled to the 6months fuel benefits as he was on forced leave which was unlawful. There was no condition linking the benefit to attendance at work. The 2nd Respondent also persisted with his claim for motor vehicle maintenance benefit as it was a contractual benefit he was entitled to. He also insisted that his claim for medical aid benefit during the period was justified as the 1st Respondent had also failed to tender any proof that such payments had been made to the provider.

The 2nd Respondent disputed 1st Respondent’s claim of excess school fees paid. 1st Respondent had not made any demands for the excess prior to the proceedings. The contract in any event provided for school fees benefit up to a maximum of USD$3,000.00. The payment of school fees in the sum of USD$1,700.00 was neither an express term of contract or a tacit agreement between the parties. 2nd Respondent could not therefore be directed to repay the amount as counter-claimed by 1st Respondent.

In regards the profit share it was 2nd Respondent position that 1st Respondent had made unsubstantiated allegations that it had made no profit. 1st Respondent had however tendered no proof to justify this position. The 2nd Respondent also disputed that no evidence of compulsion had been tendered. The 1st Respondent opposition papers clearly showed the opposite.  The 2nd Respondent believed that he had made a case for the award of punitive damages in the circumstances of the case. Lastly the 2nd Respondent disputed the counter claims made by 1st Respondent. It was his submission the Tribunal could not consider these as they did not form part of issues for determination as agreed between the parties. Further 1st  Respondent had not provided any proof as to which car loan had been taken by him. The claims for the car loan and rentals advanced were both denied as unsubstantiated. The 2nd Respondent’s prayer was for the dismissal of the counter claims raised by the 1st Respondent and for the upholding of his claims instead.

The Labour Officer after considering the evidence and submissions made by the parties made a ruling in the following terms;

“In the light of the above I hereby order Premier Tobacco Flows to pay J. Peresuh USD$20,000.00 being arrear salarys, USD$6,600.00 being value for fuel, USD$2,200.00 value for monthly maintenance costs.

The payment should be made in two instalments, thus the first one within 30 days of receipt of ruling and second and last payment to be made 30 days after payment of first and I so determine”

APPLICATION FOR CONFIRMATION

The Applicant filed the instant application for confirmation of her ruling in accordance with Section 93 of the Labour Act [Cap 28:01]. The application is opposed by the 1st Respondent and supported by the 2nd Respondent.

In limine

The 1st Respondent through its notice of opposition raised a point in limine to the effect that the Applicant’s Founding Affidavit being fatally defective there was consequently no application before the court. On the date of hearing the 1st Respondent, through counsel, abandoned the particular point in limine. Counsel however raised two other points in limine. Firstly, that the 2nd Respondent’s Notice of Opposition was improperly placed before the court for the reason that in its form and content it was opposing 1st Respondent’s pleadings instead of addressing itself to the Applicant submissions. This was said to be improper and the court was consequently urged to expunge the Notice of Response from the record.

The second point in limine was that the 2nd Respondent’s Notice of Opposition had in any event been filed out of time and no accompanying application for condonation had been file by the 2nd Respondent.  Rule 15 (6) of the Labour Court Rules, 2017, however though the use of ’shall’ clearly underlines it peremptory nature. On the basis of authorities such as Moyo vs Zvoma SC28|2000 a failure to comply with a statutory direction leads to an invalidity.

In response to the first point in limine it was submitted by the 2nd Respondent counsel that the point was meritless. There was no doubt that the application proceedings were peculiar proceedings. The proceedings were introduced through an amendment to the Labour Act [Cap 28:01]. The legislature had overlooked to provide for the participation of the successful party in the conciliation proceedings before the Labour Court. The legislation had also not provided clearly how the successful party could become part of proceedings. In terms of the forms provided in the Rules, no provision had been made for the participation of the successful party. The 2nd Respondent had therefore utilised the same form as utilised by 1st Respondent. In regards the actual content of the notice of opposition it would not make sense for the 2nd Respondent as the successful party to oppose the ruling made by the Applicant. It therefore meant that in his pleading the successful party would naturally be opposed to the 1st Respondent’s position. The proceedings were similar to interpleader proceedings. The 2nd Respondent’s point was therefore in support of confirmation of the draft ruling by the Applicant. To that end it was 2nd Respondent position that the first point in limine could not be allowed to stand.

In regards the second point in limine counsel once again relied on the peculiar nature of the application. She submitted that there were no special rules as to when the 2nd Respondent being the successful party before the Labour Officer is required to file its notice of opposition.  It would not have been proper for 2nd Respondent to have filed papers before having sight of 1st Respondent’s papers. 2nd Respondent had therefore filed after 1st Respondent. If however the court was of the view that the papers were indeed filed out of time as a result the 2nd Respondent was seeking the court’s indulgence to make an oral application for condonation for the late filing of those papers.

RULING

The court in its ruling dismissed the first point in limine and upheld the second point in limine. The court found in respect of the first point in limine that it was clearly not merited. The nature of the proceedings before the court were unique proceedings introduced by the Labour Amendment Act, 2015. The Labour Court Rules 2017 also did not make provision for the successful party to appear. The Supreme Court in Drum City vs Brenda Garudzo Supreme Court 57/18 had however articulated the need to join the successful party to the confirmation proceedings. Through the nature of the proceedings it naturally followed that the 2nd Respondent pleadings would be opposed to the 1st Respondent’s position and in support of the Applicant. It was however the court’s view that 2nd Respondent’s papers had to be filed within the timelines as set out in the Rules. This was in order to avoid anarchy in the court. The 2nd Respondent having thus filed papers out of time made an application for condonation which was granted by the court.

MERITS

The application is opposed by the 1st Respondent on the basis of three main points. Firstly, that the Applicant wrongly decided the issue pertaining to the leave that 2nd Respondent took. The 2nd Respondent having signed the contract of employment was bound by the terms of the contract more particularly clause 8 and 12. Secondly, the Applicant also wrongly awarded the 2nd Respondent in circumstances when he was not entitled to those claims. Thirdly, assuming 2nd Respondent was entitled to the claims as awarded, the 2nd Respondent was also owing 1st Respondent at termination then the Applicant was wrong in failing to set off those amounts as per contract.

The 2nd Respondent position is that the ruling by the Applicant was factually and legally correct as it was based on the evidence placed before her. The ruling should therefore be confirmed.

Based on the papers and parties submissions there are three issues for determination. I shall proceed to address them.

WHETHER THE 2ND RESPONDENT WENT ON LEAVE AND THE NATURE/TERMS OF SUCH LEAVE

The 2nd Respondent claims before the Applicant was for 10 months salary (from April 2015 to January 2016) which he submitted he was entitled to as per contract as a permanent worker. The 1st Respondent position however was that although 2nd Respondent was employed on a permanent basis the employment was however seasonal in nature. This meant that 2nd Respondent would not need to reapply for employment at the commencement of each tobacco season. It was generally agreed between the parties that he would be on leave during the off-season. The 1st Respondent tendered in evidence leave forms purportedly submitted by 2nd Respondent during that period.  It was 1st Respondent’s submission 2nd Respondent would have been advanced gratuities/          allowances for subsistence but would not be entitled to a salary. Further as 2nd Respondent was entitled per contract to annual leave for a period of 24 (twenty four days) on the basis of clause 9 of the contract any continued leave would become unpaid leave.

The Applicant in her ruling came to the following conclusion on the issues raised by the parties;

“The conciliator agrees with the claimants’ interpretation of the word permanent since the contract of employment is the guiding document here. The claimants’ contract was open ended and the claimant accrued leave days just like any other permanent worker would do as per his contract. If he was a seasonal employee there was no need for him to accrue vacation leave. Another fact is that claimants’ position was managerial, he was not covered by Collective Bargaining Agreement for their respective industry which talks about seasonal employees.

As such he has to be paid what he is owed for the months in question.”

The Applicant clearly dismissed the 1st Respondent contention that the contract was, despite the provisions of contract, a seasonal contract. She dismissed the submission on the basis that the parties were bound by the contents of the contract itself. The contract was a permanent contract. There was no reference to the seasonal nature of the contract. The terms of the contract such as the issue of probation, accrual of benefits, as well as vacation leave, also clearly pointed to the permanent nature of the contract. The Applicant disregarded the evidence tendered by 1st Respondent in the form of leave application forms purportedly signed by 2nd Respondent. She dismissed the evidence firstly on the basis that the leave forms had not been signed by the 1st Respondent to show authentication. Secondly, the form itself made it a condition precedent that the form should be completed and signed by superior before submission to the Human Resources Department which had not happened in this case. Her finding was on that basis 2nd Respondent had not proceeded on leave.

The 1st Respondent contends that the Applicant was wrong. She ought to have found, based on the provisions of contract and the evidence before her that 2nd Respondent applied for leave in circumstances where he no longer had annual leave days left. On the basis of clause 9 he would have known that he would be on unpaid leave. The Applicant was therefore wrong in her conclusion. Moreover the 2nd Respondent had also attempted to raise the defence that he filled the leave form under duress which argument the Applicant had correctly dismissed.

The first issue that the court ought to address initially is the nature of relationship between the parties as encapsulated in the contract of employment. It is clear on the basis of express conditions of the contract that the argument by 1st Respondent is rendered untenable. The contract of employment as correctly found by the Applicant indicates the permanent nature of the contract. This is very clear from a perusal of the contract provisions for example:

“RE: OFFER FOR EMPLOYMENT

We are pleased to offer you the permanent position of Auctioneer for Premier Tobacco Auction Floors on the following terms and conditions...”

The Applicant in her ruling pointed to other provisions in the contract that pointed to the fact of a permanent contract rather than a seasonal contract. For example, the duration of the contract is silent on an end date, probation period is for three months. The contract also made provision for long term benefits payable monthly e.g fuel, medical aid, car maintenance, school fees payable throughout the year. There is clearly no provision that the contract would run for the tobacco season only. The Labour Act [Cap 28:01] draws a clear distinction between the different types of contracts i.e for casual or seasonal employees, employees on fixed term contracts, employees on permanent contracts. See Simbi (Steel Makers (Pvt) Ltd vs Shamu & Ors s-71-15.  It is also clear that it was not open to the Applicant as the Labour Officer or to this court for that matter to seek to rewrite the contract entered into between the parties or to seek to read any other provision into the contract. This approach has been previously frowned upon by the Supreme Court in Kundayi Magodora & Ors vs Care International SC|41|13.

The 1st Respondent further attacked the findings by the Applicant on the basis that she found that 2nd Respondent could not have proceeded on leave based on the leave forms that were not signed by the Superior. The 1st Respondent’s submission is this was immaterial it would not alter the undeniable fact that 2nd Respondent did proceed on leave and the leave was unpaid. There was a mutual understanding between the parties that 2nd Respondent was going on leave as it was an off season period. The 1st Respondent further attacks the finding on the basis that Applicant misdirected herself when she reached the conclusion that because the leave forms were not signed it was not clear what type of leave 2nd Respondent was proceeding on or suggesting that this was some special type of vacation. According to 1st Respondent the evidence clearly pointed to the leave being vacation leave and the 2nd Respondent having no outstanding leave days the leave could only be unpaid leave days. 1st Respondent relied on the provisions of clause 9 of the contract and Section 14 (A) 5 of the Labour Act [Cap 28:01].

The 2nd Respondent position was the Applicant’s ruling was factually and legally sound. She properly found based on the evidence placed before her that the 2nd Respondent did not take unpaid leave and therefore 1st Respondent was obligated to pay 2nd Respondent the outstanding salaries and allowances.

The Applicant in her ruling made two critical findings. Firstly that the application forms tendered by the 1st Respondent were not signed by the Supervisor in authorisation. She was essentially challenging the authenticity of those forms as proof that leave had been sought and approved by the supervisor. Secondly she found that the form itself captured the agreement between the parties that the form needed to be completed, approved by the supervisor and then submitted by the Supervisor to the Human Resources Department in order for her to reach a conclusion that leave had been authorised. She found that in this case the form not having been signed by the Supervisor she could not find that the 2nd Respondent had been authorised to proceed on leave.

The 2nd Respondent’s further submission is that the Applicant erred and misdirected herself, she ought to have found that there was mutual agreement or consensus between the parties for 2nd Respondent to proceed on unpaid leave, the fact of the form not having been signed by supervisors was purely an administrative issue. The Applicant ought to have also found that the 2nd Respondent by alleging duress had been applied in filling of the leave form it clearly pointed to the fact that the leave was unpaid.

The Applicant made a finding of fact that based on the evidence before her the Respondent did not proceed on unpaid leave. For this court to set aside the findings of fact so made there must be a misdirection of facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact was said by the Supreme Court in Zvokusekwa vs Bikita RDC S-44-15 to be either a failure to appreciate at all, or a finding of fact that is contrary to the evidence actually presented. So did the Applicant misdirect herself in her findings?

It is clear on the basis of the law that the 2nd Respondent as the claimant in the matter had the onus to prove each claim placed before the Applicant. See First Mutual Life vs Muzivi SC 9/07. The 2nd Respondent placed before the Applicant a claim for salary arrears based on the contractual provisions which entitled to him a monthly salary and the other benefits claimed. The Respondent in its defence submitted that he was not entitled to the claimed salaries and benefits on the basis that 2nd Respondent was on an unpaid leave for the duration claimed. The onus clearly shifted at this stage to the 1st Respondent to prove that the parties had entered into a mutual agreement which was outside the contract provisions for 2nd Respondent to proceed on unpaid leave during the off-season and that the 2nd Respondent had indeed proceeded on leave which leave was unpaid. The 1st Respondent produced evidence in the form of the contract leave forms amongst others. Having considered the evidence in the record it is the court’s finding that the Applicant’s finding was properly based on the evidence placed before her. There was clearly no evidence tendered before her by 1st Respondent firstly to prove that a tacit agreement had been reached outside the contract itself for 2nd Respondent to proceed on unpaid leave during any off-season; there was also no evidence tendered to prove that 2nd Respondent  had been paid the gratuity allowances for subsistence during the period. There was further no evidence placed to show 2nd Respondent had indeed proceeded on leave during the period in dispute: As correctly found by the Applicant the unsigned forms were insufficient to establish the issue of authorisation of the leave during the relevant period; The other leave forms produced did not support 1st Respondent case to prove that the leave was approved neither did they indicate the balance of leave days to enable the Applicant to reach conclusion the leave was unpaid.

It is important to underline that the Applicant ruling was based, firstly, on the contract provisions and secondly on the evidence of the leave forms which forms she found to be invalid. The court is satisfied that on the basis of the evidence placed before her the Applicant did not misdirect herself. The 1st Respondent also sought to argue on the basis of the allegations of duress made by the 2nd Respondent before the Applicant.  The Applicant correctly found that there was insufficient evidence for a finding of duress or coercion in signing the leave forms. This in my considered view however would not tilt the case in favour of 1st Respondent. 1st Respondent had the reverse onus to discharge to prove that the 2nd Respondent was actually on unpaid leave during the relevant period which onus in my view 1st Respondent failed to discharge. The second ground of objection clearly stands to be dismissed. The Applicant thus correctly found that the 2nd Respondent was entitled to his salary and benefits for the period.

The 1st Respondent also submitted that this court could itself carry out a verification exercise by going through the evidence tendered the court would then be able to calculate whether the 2nd Respondent had any outstanding leave days, if he didn’t, then on the basis of Section 14 (5) of the Labour Act [Cap 28:01] as read with Clause 9 of the contract the court should find that 2nd Respondent ought to have been on unpaid leave. This point was also said to be emphasized by the fact that 1st Respondent did not charge 2nd Respondent of absenteeism for the period.

The role of the Labour Court in sitting to hear the application is neither an appellate role or a reviewing role. The applications for confirmation as set out in Section 93 of the Labour Act [Cap 28:01] are hybrid applications. The court can not be asked to play a role as a court of first instance. The submission by the 1st Respondent is therefore clearly invalid. Apart from that it also goes to emphasize the fact of the insufficiency of the evidence tendered before the Applicant. If there had been sufficient evidence placed before the Applicant to substantiate the submission that 2nd Respondent was on unpaid leave there would be no need for the 1st Respondent to seek to place further evidence before this court. The court therefore dismisses the submission by 1st Respondent in that regard.

WHETHER THE 2ND RESPONDENT WAS ENTITLED TO THE AWARD OF FUEL AND MOTOR VEHICLE MAINTENANCE CLAIMS

The 1st Respondent further objects to the confirmation of the draft ruling on the basis that it having been established that the 2nd Respondent was on leave the Applicant wrongly awarded the claims for fuel and for maintenance of the motor-vehicle. With regards the fuel it was clear that fuel would only be allocated to him when he was at work and therefore performing his employer’s duties. He would consequently not be entitled to fuel when he was on leave. With regards the claim for motor vehicle maintenance that claim ought to have been dismissed by the Applicant. This was due to the fact that motor vehicle belonged to 1st Respondent; it was given to 2nd Respondent in the course of duties.  No proof however had been tendered to show the amounts disbursed by 2nd Respondent towards maintenance of vehicle which amounts were to be refunded. The facts showed instead that 2nd Respondent had written to 1st Respondent indicating that the car was no longer moving, a clear indication of lack of maintenance. The 1st Respondent had, as shown in the record forked out its own money to service the motor-vehicle hence it could not be expected to pay double by paying for the maintenance of the same motor-vehicle.  This would result in unjust enrichment of 2nd Respondent. It was also 1st Respondent submission that in any event the claim had already been overtaken by events, the motor-vehicle was already with 1st Respondent at the material time.   The claim should have therefore been dismissed by Applicant.

The 2nd Respondent submission was that on the basis of clause 3 of the contract of employment he was entitled to fuel allocation and vehicle maintenance fee on a monthly basis. There were no other conditions outlined in the contract such as the requirement to produce evidence of usage such as vouchers or receipts as suggested by 1st Respondent or that he would only be entitled to both whilst he was attending work and not during vacation leave. He further denied that he had proceeded on leave. He had signed the leave forms but never did proceed on leave.

The Applicant in her ruling found that fuel, vehicle maintenance, school fees and tuition fees were all contractual entitlements. The 1st Respondent was therefore obliged to pay the 2nd Respondent. The contract itself in Clause 3 provided as follows;

“you will be entitled to a C-class Mercedes Benz Compressor which shall be issued to you according to our employee car purchase scheme, as your vehicle. You will be required to sign our employee vehicle loan scheme agreement when you sign your monthly fuel allowance will be 500 litres. The company will pay your monthly vehicle maintenance cost of USD$200.00. Your medical aid will be paid 100% for the CIMAS private hospital scheme and this will cover your maximum of three dependencies school fees will be payable on invoice for you for a maximum of two children at a maximum rate of USD$1,000.00 per child. The company will refund you the full cost of your tuition fees for every level passed in your degree programme.”

It is also clear upon a perusal of the contract and more particularly Clause 3 that payment of fuel allowance as well as vehicle maintenance allowance was not based on any condition. The 2nd Respondent was entitled to those fixed amounts monthly. The payment of the fuel allowance was not linked to his attendance at work. There was also no requirement laid for production of proof of expenditure towards the vehicle maintenance in order for 2nd Respondent to be paid out the allowance. That amount was also a fixed monthly allocation. The issues raised by 1st Respondent that in fact 2nd Respondent was not maintaining the vehicle are clearly neither here nor there. The 1st Respondent ought to have raised the issue of breach of the contract at the material time. The issues could not be raised at the late stage after the 2nd Respondent had raised the fact of the unfair labour practice by 1st Respondent. It is clear on the basis of the above that the Applicant findings that the fuel and vehicle maintenance allowances were contractual entitlements was correct. It must follow that 1st Respondent ground of objection stands to be dismissed.

WHETHER THE APPLICANT SHOULD HAVE SET-OFF THE AMOUNTS OWED.

The last ground of objection raised by the 1st Respondent is that 2nd Respondent was owing it lots of money at the time of resignation. The Applicant ought to have set off whatever was owed to 2nd Respondent against the amounts he owed 1st Respondent. 1st Respondent had made submissions that it had advanced two separate loans amounting to USD$7,000.00 which 2nd Respondent had not paid. 1st Respondent had also overpaid school fees for 2nd Respondent’s minor child. 1st Respondent had also advanced rentals to 2nd Respondent but this was not a contractual entitlement.

The 2nd Respondent position is that the Applicant was correct in disregarding the claims made by 1st Respondent. The claims did not form part of the issues referred for determination by the Applicant.  The 2nd Respondent relied on the basis of the decision in Inter-agric (Private) Limited vs Mudavanhu & Ors 2015 SC 9 where the court held that an Arbitrator is only competent to determine issues as referred to him by the Labour Officer. It was 1st Respondent submission that the principle applied equally to Labour Officers. Applicant was thus entitled to determine only those issues as referred to her. The 1st Respondent’s claims were thus improperly placed before the Applicant. She was thus correct to dismiss those claims.

The Applicant in her ruling did not specifically address herself to the counter-claims raised by the 1st Respondent and the issue of set off as laid in the contract. She only addressed the issue of the rentals paid by 1st Respondent in the following manner;

“Respondent in its written submissions stated that claimant was advanced with a car loan in the sum of USD$6,000.00.

The money for rental was given in advance to claimant as the discretion of Respondent when Respondent stopped paying for the rentals claimant never complained. Why complain now?”

The Applicant in her finding dismissed the issue of rentals advanced as improperly taken for the reason that the rent had been paid at the discretion of the 1st Respondent. She however did not specifically address the issue of the loan advanced and the issue of the school fees payment. She also failed to address the issue of set-off being a contractual term as laid in Clause 12 of the contract. Clause 12 essentially provided that the parties agreed that anythingowing to employer at the time of employment could be set-off against any amount owed to the employer.

In the court’s considered view this however is not sufficient to vitiate the proceedings.  It is clear that the Applicant correctly found that the claims for outstanding salary/benefits were valid. She also correctly dismissed claims of constructive dismissal. She also correctly found that the 2nd Respondent had not been forced to sign leave forms. She however erred in failing to address whether the claims as submitted by 1st Respondent were properly before her and whether it was proper for the 1st Respondent to claim set-off in the proceedings before her.

The counter claims were in any event improperly placed before the Appellant. It is clear from a perusal of the record of proceedings that the issues that were referred to the Applicant were non-payment of salaries/benefits; constructive dismissal and failure to comply with provisions of contract in regards car purchase scheme. As correctly submitted by 2nd Respondent it was not open to Applicant to address the counter claims by 1st Respondent as they did not form part of issues placed before her for determination. The claims also being monetary in nature the 1st Respondent would be required to lead evidence to prove those claims. No such evidence however was led by the 1st Respondent to prove each claim made. The 1st Respondent’s attempt to place that evidence before this court through its Notice of Opposition is also highly improper. The powers that this court has in sitting to hear the applications for confirmation is outlined in Rule 15 (4) of the Labour Court rules, 2018.

The rule provides as follows;

“(4)	An applicant who wishes to apply for granting of a ruling and order which he or she has made shall within thirty days of the date of ruling lodge with the Registrar an application in three copies by way of Form LC 11 supported by an affidavit and any evidence which he or she considered in making the ruling and order including-

the record of any charge against or allegation of misconduct that was made against the employee;

the minutes or record of proceedings or hearing under taken to inquire into the charge or allegation of misconduct;

the decision or determination made at the end of the hearing or inquiry; and”

It is clear that it is the Applicant who is required to place before the court all the relevant documents and any other evidence in respect of the application. The court is then required to make a decision based on the evidence that was before the Applicant. No provision is laid in the rules for the leading of new evidence by the parties before the Labour Court.

It follows that the Applicant was correct when she disregarded the amounts claimed by 1st Respondent in set-off although she arrived at this position for different reasons. It follows that her ruling ought to be confirmed as is.

The last issue raised pertained to the issue of costs. The 1st Respondent prayed for dismissal of the application with costs on a higher scale. No reasons were advanced for the request for punitive costs. The application has largely succeeded. Costs must therefore follow the cause. It is accordingly ordered as follows;

The application succeeds.

The ruling handed down by the Labour Officer Priscillah Mgazi on 17 April 2018 be and is hereby confirmed.

1st Respondent is hereby directed to comply with the Applicant’s ruling within 30 days of this order.

1st Respondent is also directed to pay Applicant’s costs within 30 days of this order.

Hatinahama & Associates Law Chambers, 1st respondent’s legal practitioners

Honey and Blanckenberg, 2nd respondent’s legal practitioners