Pure Seasons Foods (Pvt) Ltd v Gloria Watambwa & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/331/2016
HARARE, 28 OCTOBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/331/2016

HARARE, 28 OCTOBER 2015		                        CASE NO. LC/H/536/13

AND 13 MAY 2016

In the matter between:-

PURE SEASONS FOODS (PVT) LTD				Appellant

And

GLORIA WATAMBWA						1st Respondent

And

SPIWE RUNDARE							2nd Respondent

And

ZIVANAI NYAHODZA						3rd Respondent

And

STEPHEN KUMBANI						4th Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. T. Marume (Legal Practitioner)

For Respondent	Mr G. Sithole (Legal Practitioner)

MAKAMURE, J:

The four respondents are former employees of the appellant company.  Each one of them was dismissed.  Upon reference of the matter to arbitration, the Learned Arbitrator found that they had been unfairly dismissed and ordered their respective reinstatements with alternative orders for payment of quantified amounts of damages.  Aggrieved by the arbitrator’s decision the appellant appealed to this Court on the following grounds with respect to each of the respondents.

“1.	The Learned Arbitrator grossly misdirected herself on both on the facts and the law in coming to a finding that the respondent was unfairly dismissed which finding was grossly unreasonable in its defiance of logic to an extent that no reasonable person deciding on the same facts could have come to that conclusion in view of the fact that respondent deserted appellant’s workstation and joined a rival company called Herb Delicacy International whilst he was on suspension pending disciplinary action.  It is trite law such an employee who engages in another job before severing ties with the previous employer repudiates his contract of employment and therefore waives his right to challenge or allege any dismissal.

2.	This honourable arbitrator grossly misdirected herself on the facts in concluding that respondent remained the employee of the appellant as he continued to avail himself for employment when in actual fact the respondent is now an employee of another company and his services are no longer available.  Such misdirection amounts to an error of law as it defies logic.

3.	The Learned Arbitrator erred at law in awarding damages in lieu of reinstatement, gratuity, arrear salaries and benefits to the respondent whilst respondent had repudiated his right to the same by engaging himself in a permanent job whilst on suspension.  Further, the quantified award violated the principles of law considered in assessing appropriate damages in labour dispute.  In casu respondent was not entitled to any damages because evidence led proved that he had already gotten an alternative job.”

The facts with respect to the 1st respondent are as follows – as summarized by the Learned Arbitrator

The first respondent joined the appellant company in December 2003 on a contract without limit.  She was last paid a salary of US$100.00 in June 2012.  On 23 July 2012 the appellant asked the 1st respondent not to report for duty.  She was later served with a suspension letter dated 16 July 2012. She was subsequently dismissed in terms of the National Employment Code of Conduct, Statutory Instrument 15 of 2006 (S.I. 15/06).  On 14 November 2012 the 1st respondent sought relief through the Labour Officer.  This was after the appellant had reinstituted fresh disciplinary proceedings before reinstating her.

When parties appeared before the Arbitrator the appellant company (then respondent) (appellant) was making an offer for mutual termination of employment.  The appellant company indicated that it was experiencing financial difficulties. It produced three copies of bank statements seeking to prove that it was struggling financially. Those difficulties notwithstanding, the appellant made an offer totaling one thousand one hundred and twelve US dollars and seventy cents (USD1712.70) to the first respondent while the 1st respondent’s claim totaled sixteen thousand four hundred and twenty five US dollars and thirty six cents (USD16425.36).

The Learned Arbitrator found as a fact that after the suspension, the appellant did not conclude the disciplinary process.  As such the 1st respondent remained an employee of the appellant.  Further to that the appellant never called the 1st respondent to work. There was an allegation that 1st Respondent had secured employment but there was no proof to that effect. It could not under the circumstances be said that the first respondent failed to avail herself for work.  Reliance for this position was put on Zimnat Assurance Ltd v George Dikinya SC 30/10 where the Supreme Court stated that:

“An employee who is placed under suspension must continue to hold himself available to perform his duties if called upon to do so.”

The Arbitrator also referred to the provisions of section 76 of The Labour Act [Chapter 28:01] (the Act) that is, where there is financial incapacity by a company, there was a duty placed on the employer to make full disclosure of such incapacity. This would enable the adjudicating authority to make on informed decision. The Arbitrator found that the information which was placed before him was not in compliance with the provisions of The Act.  After assessing what was placed before her, the Learned Arbitrator concluded that the first respondent was unfairly dismissed.  Having concluded that the first respondent was unfairly dismissed, an order for reinstatement as earlier noted, was made.  The alternative of damages were made as follows considering that the 1st respondent had worked for the appellant for 9 years.

Housing $60 pm x 9 months		USD540.00

Transport $44.00 x 9 months		USD396.00

Salary $326.40 pm x 9 months		USD3 937.60

Gratuity (9 years)				USD   851.60

Damages 6 months gross salary		USD2 460.72

Total						USD8 186.40

In its submissions the appellant averred that the first respondent was employed on a fixed term basis.  However this was never proved before the arbitrator.  The bulk of submissions on behalf of the appellant are based on the assertions that the first respondent repudiated her contract with the appellant and secured employment elsewhere.  However no proof to that effect was ever placed before the Arbitrator.  It is an established principle of our law that the employer proves that the employee did secure or ought to have sought alternative employment (See Godfrey Nyaguse v Mkwasine Estate SC 34/200). This means that where an allegation that an employee did secure alternative employment is made, such an allegation must be proved. So the submission that the respondent repudiated her contract of employment with the appellant is not supportable. With respect to the 2nd respondent Spiwe Rundare the terms of reference (as with the first respondent) were

Determine whether or not the employee was unfairly dismissed.

Determine the quantum of monies due to the complainant in respect of arrear salaries.

The Arbitrator found as a fact that the 2nd respondent was unfairly dismissed.  It was not disputed that the 2nd respondent had worked for the appellant for a period of six (6) years.  She was claiming a total of thirteen thousand eight hundred and seventy dollars (USD13870.00) while the appellant was offering a total of one thousand one hundred and ninety five US dollars (USD1195.69) The Learned Arbitrator then made an award of six thousand eight hundred and thirty seven US dollars and seventeen cents (USD6837,17 broken down as follows:

Housing x 9 months @ $60.00 pm		USD  540.00

Transport 9 months @ $44.00 pm			        396.00

Salary 9 months x $306.10				     2 754.90

Gratuity (8 years)					        685.55

Damages 6 months	gross salary		              2 460.72

Total							    6  837.17

With respect to 3rd respondent Zivanai Nyahodza the terms of reference were

Determine whether or not the employee was unfairly dismissed.

Determine the quantum of monies due to the complainant in respect of arrear salaries.

The arbitrator found that the 3rd respondent was unfairly dismissed.  She ordered reinstatement or alternatively the payment of a total of six thousand eight hundred and sixty dollars and thirty five cents (USD 6 860.35) broken down as follows:

Housing 9 months x $60.00 pm			USD  540

Transport 9 months x $44.00 pm			        396

Salary 9 months x $301.02 pm			     2 709.18

Gratuity						        785.05

Damages 6 months gross salary			     2 430.12

Total							     6 860.35

With respect to the 4th respondent Stephen Kumbani, the terms of reference were

Determine whether or not the employee was unfairly dismissed.

Determine the quantum of monies due to the complainant in respect of arrear salaries.

The fourth respondent was also found to have been unfairly dismissed.  His claim was nineteen thousand four hundred and fourty four dollars and fifty-nine cents while his employer offered him a total of two thousand and fifteen US dollars and seventy three cents (USD 2015.73).  The Arbitrator made an award of seven thousand eight hundred fifty four dollars and ninety nine cents (USD7 854.99) broken down as follows:

Housing 9 months x $70.00 pm			USD  630.00

Transport 9 months @ $44.00			        396.00

Gratuity						     1 012.14

Damages 6 months gross salary			     2 326.74

Total							     7 854.99

It is clear in all cases that the respondents were unfairly dismissed.  In each case after making a finding that they were unfairly dismissed the arbitrator was required to determine the amounts of money due to the respondents in respect of arrear salaries.

It appears common cause that all the respondents were entitled to arrear salaries for the period June 2012 to February 2013.  There has not been proof that each of the respondents secured alternative employment.  This means that all the respondents remained the employees of the appellant. (See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (SC)).

It also appears from what the employer was offering that the respondents were entitled to their basic salary, transport and housing allowance and gratuity.  The offers made by the employer do not justify arrear salaries for only two months where it was common cause that the respondents were owed nine months’ arrear salaries.  In each case the Arbitrator ordered reinstatement with an alternative order for payment of the appropriate damages.  Such damages and arrear salaries were made after the Learned Arbitrator had considered the evidence presented before them.  Each of the respondents had made claims which are significantly higher than what the Learned Arbitrator ordered.  It is also noted that the employer made its offer which was lower than the claims.  It is my view that the Learned Arbitrator properly assessed the evidence presented by the parties and made an appropriate order.  In view of the foregoing, the finding that the respondents remained the appellant’s employees is beyond reproach.  The order was properly made. Where an order for reinstatement is made, an order for damages is always the appropriate alternative provided that the quantum has been properly assessed. (See Kuda Madyara v Globe & Phoenix Industries (Private) Limited t/a Ran Mine 2002 (2) ZLR 269 (S)).

In view of the foregoing I find that all the grounds of appeal have no merit.    I find no misdirection or error by the Learned Arbitrator. The appeals fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mawire J.T. & Associates, Respondents’ legal practitioners