Real Star Security (Pvt) Ltd v George Manhidza and Josphat Magora

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LCH24.25 HELD AT HARARE 7TH NOVEMBER 2024
CASE NO LCH995/24
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO.LCH24.25 HELD AT HARARE 7TH NOVEMBER 2024	CASE NO LCH995/24

AND 23 JANUARY 2025

In the matter between

REAL STAR SECURITY (PVT)LTD	APPELLANT

The And

GEORGE MANHIDZA	1ST TRESPONDENT

JOSPHAT MAGORA	2ND RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE , JUDGE.

FOR THE APPELLANT:M. K. CHIGUDU FOR BOTH RESPONDENTS: E. JENA

MAKAMURE J:

This is an appeal from a determination made by an arbitrator. The following are the grounds of appeal and I quote:

‘1. The arbitrator misdirected herself on a question of law by failing to determine the application for recusal that had been made before her prior to the hearing of the arbitration on the merits.

The arbitrator erred at law in failing to find that she had no jurisdiction to adjudicate over the 2nd respondent’s claim as provided for by Section 63(3a) of the Labour Act Chapter 28:01, despite the fact that he admittedly stated in his submissions that he was a Security Officer and a non managerial employee.

The arbitrator further erred on a question of law in failing to find that the evidence filed on record to support the assertion that 1st and 2nd respondent (s) were employed in the capacity of Assistant Security Manager and Security Officer contradicted their submissions with regards to the capacities in which they were employed.

The arbitrator further erred at law in finding that appellant failed to follow due

process in terminating the respondents’ contracts contrary to the evidence that was placed before her.

The arbitrator further erred on a question of law in finding that the respondents had not abandoned employment and were entitled to the relief sought before her despite the overwhelming evidence placed before her to the contrary.

The arbitrator further misdirected herself when she awarded the Respondents before exhausting other channels like calling for a hearing of both parties so that an amicable resolution could be reached as an out of court settlement.

The arbitrator further misdirected herself in awarding that Reinstatement was not possible , whilst the Respondents alleged that they were unfairly dismissed by the Appellant . It is therefore common cause that the arbitrator should have ordered reinstatement.’

The facts of this matter are rather scanty. The respondents approached a labour officer with a claim for : Alleged unfair dismissal, non payment of January salary and terminal benefits.

The complaint form is dated 24January 2024. Conciliation failed and a certificate of no settlement was completed. The matter was referred to arbitration. The issues to be arbitrated upon were(1) Whether or not the claimants were unfairly dismissed.(2)Whether or not the claimants are owed January 2024 salary and (3) The remedy thereof.

The parties appeared before an arbitrator. They made written submissions. The appellant herein (respondent then) was not happy with the conduct of the Arbitrator. An application was made for the recusal of the Arbitrator. The then respondent also challenged the jurisdiction of the Arbitrator alleging that the current respondents were governed by some national employment council (NEC). The Arbitrator considered both the the application for recusal and challenge on jurisdiction and dismissed both. The Arbitrator found that the respondents were not NEC graded. The Arbitrator proceeded to consider that the current respondents were summarily dismissed by the appellant contrary to provisions of s12B (1)-

(4) of the Labour Act Chapter 28:01(the Act). S12B of the Act provides for protection of an employee’s right against unfair dismissal. The Arbitrator found that the appellant did not dismiss the respondents in terms of an employment code. The Arbitrator also dismissed the appellant’s argument that the respondents had absconded from work and held the view that if indeed they had absconded from work it should have terminated the contracts in terms of the

law. The Arbitrator further found that the were conflicts between the parties at the workplace as argued for on behalf of the respondents. The Arbitrator found in favour of the respondents that is: ‘They were unfairly dismissed.’ In the result the Arbitrator ordered that i)the appellant pays the respondents damages in lieu of reinstatement that parties were to agree on, failing which the parties were to approach a labour officer for quantification,(ii) the appellant pays

the respondents’ salaries for the month of January 2024 and (iii) the Order be complied with within 30days from date of award.

One of the documents which forms part of the record is a copy of a contract of employment between the 2nd Respondent Josphat Magora (Magora) and the Appellant. It shows that Magora was appointed as Operations Assistant Manager. Magora signed this document on 29 August 2023.However there is no signature on behalf of the appellant company. This

contract document is the one that the Arbitrator relied on. Unfortunately, the appellant has not indicated the terms of the employment relationship between itself and the respondents. In terms of what was placed before the Arbitrator , I think that the conclusion that was arrived at was the best under the circumstances. There is no proof that the appellant followed due process in dealing with the situation between itself and the respondents. The appellant did not indicate in what capacity or capacities the respondents were employed.S125 of the Act provides that:

‘125 Records to be kept by employers, principals and contractors

Every employer upon whom any agreement, determination or regulation is binding under this Act in relation to remuneration to be paid, time to be worked or such other particulars as may be prescribed shall at all times keep, in respect of all persons employed by him, records of the remuneration paid, of the time worked and of those other particulars.

The form and manner in which the records referred to in subsection (1) shall be kept as prescribed:

Provided that the Registrar may in writing authorize the keeping of such records in some other form if the records so kept will, in his opinion, enable a labour officer or designated agent to ascertain therefrom the required particulars.

Whenever any agreement, determination or regulation regulates the rates at which or the principles upon which payment shall be made by a principal or contractor to any person to whom any work is given out on contract by that principal or contractor, every such principal or contractor shall at all times keep records of payments made by him to any person to whom he has so given out work on contract and of such other particulars as may be prescribed, and every such person to whom work has so been given out on contract shall at all times keep records of payments received by him from any such principal or contractor in respect of such work and such other particulars as may be prescribed.

Every person who is or has been an employer or principal or contractor, as the case may be, shall retain the records referred to in subsections (1) and (3) for a period of three years and shall produce these records on demand made at any time during that period by—

a labour officer; or

a designated agent acting within the scope of his authority, in terms of subsection (	3) of section sixty-three.

If an employer fails to keep or retain the records referred to in this section or

falsifies any such record, it shall be presumed for the purposes of this Act that every

employee employed by him during the relevant period was engaged throughout that

period for not less than the ordinary hours of work applicable to that employee in

terms of any agreement, determination or regulation under this Act.

Where it is proved that any statement or entry contained in any record is false, the person required in terms of this section to keep that record shall be presumed, until the contrary is proved, wilfully to have falsified that record.

Any person who fails to comply with any of the provisions of this section applicable to him or who willfully falsifies any record referred to in this section shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.’ (My underlining for emphasis).

It is common cause that there was an employment relationship between the parties. The appellant as the employer was obliged by s125 of the Act to keep a record or records of the nature of employment between it and the respondents. This is what it should have produced in its defence before the Arbitrator. This was not done. This was particularly important since there is correspondence on record showing that the appellant made efforts to contact the respondents when the two were apparently not coming to work . Disciplinary proceedings could have been initiated against the respondents. The appellant must have as part of its records the respondents’ contact addresses where it could have the disciplinary charges served. The appellant did not indicate how long the respondents absented themselves from work. It therefore becomes difficult to say whether the respondents are the ones who stopped reporting for work or they were summarily dismissed. One of the inferences which can be drawn is that it ( the appellant) did not produce the records for fear of confirming the respondents’ claim. This therefore tilts the scale in favour of the respondents. In British

American Tobacco Zimbabwe v Chibaya SC30/19 the Supreme Court quoted with approval the case of Miller v Minister of Pensions [1947] 2ALLer 372,374 that ‘If the evidence is such that , the tribunal can say,” we think it more probable than not , the burden is discharged, but if the probabilities are equal it is not.”’

The issue of the appellant wanting a round table meeting to resolve the dispute between the parties does not appear to have been brought to the attention of the Arbitrator and therefore the Court is not at liberty to consider this matter since the lower tribunal did not consider it. In Total Marketing Zimbabwe (Pvt) Ltd v Pollylamp Investments (Pvt) Ltd 2007(2) ZLR 60 (S) it was held that it would be wrong for an appeal court to consider matters which the lower court had not considered. In any event it was entirely up to the appellant to call its former employees to discuss and mutually agree on how best to resolve the matter. Further still the appellant did not challenge that conciliation failed and that is why the matter was referred to arbitration. It is trite that an appellate court should be slow to interfere with factual findings of the lower tribunal. In Hama v National Railways of Zimbabwe 1996(1) ZLR 664 it was held that an appellate court should not interfere with the findings of fact by a lower court unless it was satisfied that, considering the facts placed before the lower court, its findings were outrageous to the extent that no person who had applied his or her mind to the same facts would have reached the same conclusion. Further in the present case the Arbitrator had the chance to assess the credibility and demeanour of the witnesses. This is an advantage which this court does not enjoy. This means that grounds 3, 4, 5, 6 and 7 are not supported .The question of jurisdiction and recusal were considered and as already noted ,the Arbitrator dismissed them. This means that there is no merit in grounds 1 and 2.In the result that there is no merit in the appeal.

It is trite that he who alleges proves. Nyahondo v Hokonya & Ors 1997(2) ZLR 457. In the present matter the appellant has not discharged the requisite onus. There is no need to

interfere with the determination. The appellant should comply with it. The appeal is therefore dismissed.

IT IS ACCORDINGLY ORDERED THAT:

The appeal be and is hereby dismissed.

Each party bears its own costs.

ZINYENGERE RUPAPA, APPELLANT’S LEGAL PRACTITIONERS.

JENA AND ASSOCIATES, RESPONDENTS’ LEGAL PRACTITIONERS.