Rudolf Matungwana & 20 Others v Rufaro Marketing (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/346/16
HELD AT HARARE 30 MARCH 2016
CASE NO
JUDGMENT NO LC/H/346/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/346/16

HELD AT HARARE 30 MARCH 2016				CASE NO LC/H/765/15

& 10 JUNE 2016

In the matter between:

RUDOLF MATUNGWANA & 20 OTHERS			Appellants

And

RUFARO MARKETING (PVT) LTD				Respondent

Before The Honourable F C Maxwell, Judge

For Appellants		Mr T Chivale (Legal Practitioner)

For Respondent		Ms A Mapanzure (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award issued on 5 August 2015.  Appellants are employees of respondent.  From March 2012 to March 2015 respondent failed to pay appellants’ salaries.  Appellants were aggrieved and referred the matter to conciliation and thereafter arbitration.  The arbitrator awarded appellants amounts less than what they had claimed.  Aggrieved, the appellants appealed to this court on the following grounds;

The learned arbitrator erred ad misdirected herself both in fact and law in finding that appellants had subscribed to a leave scheme arrangement with respondent when there was no proof to that effect;

Alternatively, and in any event; the learned arbitrator erred ad misdirected herself in giving effect to an illegal agreement;

The learned arbitrator erred and misdirected herself both in fact and law in not giving reasons for the award of arrear salaries; with the result that she merely handed down a thumb sucked award that is not explained.

Appellants prayed for the setting aside of the award and its substitution with the

amount initially claimed.

Respondent contended that the appeal lacks merit.  It contended that proof of the leave days scheme of arrangement was filed before the arbitrator during arbitration.  Respondent further contended that the leave days scheme of arrangement does not constitute an illegal agreement as the employees freely and voluntarily entered into the agreement with the employer.  Respondents also contended that the figures awarded by the arbitrator to the appellant’s were not thumb sucked or plucked from the air as they were clearly quantified, supported and well explained in the statement of Defence and evidence attached thereto.  Respondent prayed for the dismissal of the appeal with costs.

I will proceed to examine the issues raised in the grounds of appeal.

Whether or not there was proof that appellants had subscribed to the leave days scheme arrangement.

It is not in dispute that the Works Council reached an agreement on 26 October 2012

and this agreement is referred to as the “leave days scheme of arrangement.”  Appellants accept that the agreement was signed by the Workers Committee chairman and the Workers Committee Secretary.  They however put in issue the authority and mandate of these two to sign on their behalf.  The arbitrator made reference to the provisions of section 25 of the Labour Act [Chapter 28:01] and made a finding that the contents of the agreement binds the then claimants as they were duly represented by the Workers Committee.  The record of proceedings contains minutes of a special Works Council meeting of 26 September 2012 whose resolutions formed the contents of the Works Council agreement signed on 26 October 2012.

Appellant cited the case of Astra Industries Ltd v Peter Chamburuka SC 27/12 as authority that he who makes a positive allegation bears the onus of proving same.  As submitted for respondent, the composition and authority of the Workers Committee was not disputed.  It is the appellants who had the burden of proving that they were not bound by the agreement which was entered into on their behalf.  I am persuaded by the submission for respondent that once a Workers Committee is elected, the rights and obligations of the employees where they ought to be represented vest in the Workers Committee.  In accordance with Section 25 (1) of the Labour Act [Chapter 28:01] the appellants had the onus of proving what less than fifty per cent of the employees did not approve the arrangement.  No such proof was produced before the arbitrator, therefore his finding cannot be faulted.  I find that there was proof that the appellants had subscribed to the leave days scheme arrangement.

Appellants sought to place reliance on authorities that specify that a Workers Committee is not a legal persona that can sue or be sued.  As stated for respondent, the authorities are distinguishable as the Workers Committee has not initiated any legal proceedings.  It merely acted as the employees’ agent in the negotiations leading to the agreement.  I therefore find no merit in the first ground of appeal.

Whether the agreement was illegal

Appellants argue that the agreement is illegal as it contravenes the statutory

obligation of the employer’s duty to remunerate employees.   The agreement did not excuse the employer from the duty to remunerate the employees.  It was agreed that the employees would go on paid leave.  The issue of the negative accrual of leave days was to accommodate those employees who had exhausted their leave days.  All this was clearly stated in the agreement.  The employees with positive leave days were to receive their remuneration in full.  Appellants are silent on the fate of the employees who had exhausted their leave days but were supposed to go on paid leave.

Appellants also argue that the agreement contravenes common law in that it is improper, unconscionable and unduly harsh and oppressive.  They further argue that the purported negative leave days scheme agreement was not founded on any law and contrary to public policy.  In their view, it cannot be countenanced  that one can lose money by virtue of being employed and that at the end of the month a person can owe the employer salaries instead of being owed same.  The words of PATEL JA in Kundai Magodora & Others v Care International Zimbabwe SC 24/14 are apposite.

“In principle it is not open to the courts to re-write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.  This is so as a matter of public policy…”

As stated for respondent, the relationship between the appellants and the respondent is governed by an agreement consented to by both parties authorized  representatives.  It is trite that under the law of agency, the agent’s action operates to create a contractual or legal tie between the principal and the third party.  The principal cannot be excused from the lawful conduct of the agent.  See River Ranch Ltd v Delta Corporation Ltd HH-1-10.

It therefore follows that the basis for the alleged illegality is faulty.  I find no merit in the second ground of appeal.

Whether or not the arbitrator handed down a thumb sucked award that is not explained

Appellants assert that it is not clear where the figures in the table in the award are

derived from and more importantly how the arbitrator calculated and arrived at the said sums. The respondent argues that the leave days scheme arrangement guided the arbitrator in arriving at the figures, the minutes of the Works Council meeting in which the resolutions founding the arrangement were made as well as the Works Council agreement to that effect were available to the parties during the arbitration proceedings.  The arbitrator stated that  “after a careful analysis of the evidence adduced before me I order as follows…”  He further stated in his findings and analysis that the submissions by the respondent regarding the part payments, loan schemes, and furniture deal were not refuted by the claimants.  It is not clear what reasons or explanation appellants wanted from the arbitrator.

The record of proceedings confirm the submissions by the respondent.  Appellants’ statement of claim is contained in pages 21 to 26 of the record.  On pages 24 – 25 they tabulated what each one claims to be entitled to and the overall total is $285 615.00.  The respondent’s statement of defence spans over pages 27 to 94 with annexures from pages 95 to 943.  Respondent provided detailed computations of the earnings, deductions and total net pay of the claimants for the relevant period.  On pages 38 to 39 of the record.  Respondent computed what it claimed to owe to each of the appellants.  The total was

$16 765.57 which total the arbitrator accepted.  Pages 944 to 946 contain the claimants response to respondent’s schedule.  They did not challenge detailed computations.  All they did was to raise issues of whether they had entered into the agreement and whether the agreement is legal.  The decision of the arbitrator can therefore not be faulted.  There was enough evidence placed before him and appellants’ criticism is not warranted.  I find no merit in the third ground of appeal.

In the final analysis the appeal has no merit.  Accordingly the following order is appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

J Mambara & Partners, appellants’ legal practitioners

Chinawa Law Chambers, respondent’s legal practitioners