Rural Electrification Agency v [Respondent]

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/86/16
HELD AT HARARE, 16TH FEBRUARY, 2016
CASE NO. LC/H/687/15
AND 19th FEBRUARY, 2016
JUDGMENT NO. LC/H/86/16
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IN THE LABOUR COURT OF ZIMBABWE  	       JUDGMENT NO. LC/H/86/16

HELD AT HARARE, 16TH FEBRUARY, 2016                  CASE NO. LC/H/687/15

AND 19th FEBRUARY, 2016

In the matter between:-

RURAL ELECTRIFICATION AGENCY 		-		APPELLANT

This is an appeal against an arbitral award handed down by the Honourable T.S. Sengure on the 30th of June, 2015.

The material background facts are as follows;

The respondent was employed by the appellant on the basis of a fixed term contract for two years. When the contract of employment terminated upon effluxion of time the respondent referred a claim of an unfair labour practice to the National Employment Council for the Energy Sector. The matter was upon failure to conciliate referred to arbitration. The terms of reference were for him to determine;

“(a)	 Whether or not the claimant was owed any overtime and the food basket allowance and the remedy thereof.”

The respondent claim before the Arbitrator was that he was not paid for overtime. He was working an average 12 hours a day for the 4 days he was on duty. This calculated to 48 hours a week which period exceeded the permitted hours in terms of the Labour Act [Cap 28;01].  The respondent’s submission was that the appellant had failed or neglected to pay him for the extra hours so worked. Appellant had also failed to credit the overtime with paid leave which is an alternative provided in Section 14(1) of Statutory Instrument 1 of 2008. The respondent was claiming an amount of $4 093.76 in overtime allowance for the excess hours worked.

The appellant in opposition submitted that the respondent was engaged as a Risk Control Assistant on a two year fixed term contract which terminated on the 31st of August 2012. The appellant submitted that it had paid respondent for all the overtime that accrued to him during the tenure of his employment. The appellant tendered evidence to show that respondent had actually worked in total 4296 hours, that respondent was earning a salary based on an average of 20/83 days worked per month, that the period of overtime based on the evidence produced in the form of internal time sheets was 46.68 hours, for which the outstanding amount had however been paid through a bank transfer (copy of payment schedule also tendered). The appellant dismissed the respondent’s claims of non-payment of overtime as baseless. The claim apart from the wrong calculation was also wrongly based on the supposition that the respondent was engaged as a Risk Controller when he had only been engaged in an acting capacity at the time.

The respondent in replication denied that he had been paid for any overtime accrued during the tenure of his employment. He rejected the evidence tendered by the appellant to show that he had in fact been paid. The evidence according to him was based on appellant’s own calculations of the overtime. The calculations were not based on actual days worked overtime. The evidence could not therefore be relied upon. The respondent positions was the onus lay on the appellant to produce the attendance register so that the tribunal could properly ascertain the actual dates on which he had worked overtime.

Based on the submissions by the parties and the evidence placed before him the Arbitrator concluded that the respondent did work overtime during the tenure of his contract. There was however a dispute as to the period worked overtime, the amount to be paid for

overtime and whether in fact Respondent had been paid. The Arbitrator found that the appellant as the custodian of the register of attendance had the onus to produce the register. The appellant had however not produced the register of attendance. On that basis the Arbitrator then concluded that the respondent had worked an overtime of 3.5 hours each day. This translated to a total of 358 days and multiplied by the rate of overtime as provided by the respondent of 1.5 this calculated to a total amount of US$1 879.50 in overtime.

The appellant was aggrieved by the award. It noted the present appeal on the basis of the following grounds;

The Arbitrator erred and misdirected himself in finding that the respondent is entitled to payment for outstanding overtime where there is no evidence tendered to indicate that overtime is due and owing to the respondent.

The Arbitrator erred and misdirected himself in making a finding that the respondent is entitled to payment of outstanding overtime. Such finding was made in the face of evidence to indicate that respondent was paid all his dues.

The respondent took a point in limine that the grounds couched as they do not raise a point of law as envisaged under Section 98(10) of the Labour Act [Cap 28:01]. I am satisfied, to the extent that the appellant in the first ground alleges that the Arbitrator misdirected himself in his findings on the facts that respondent was entitled to be paid overtime in circumstances where no evidence had been tendered before him to substantiate the claim that ground is premised on a question of law. To the extent that the second ground of law is also alleging misdirection on the facts in that the Arbitrator found that respondent was entitled to payment of outstanding overtime in circumstances where the appellant had placed before the Arbitrator evidence that respondent had been paid all his dues the second ground of appeal also clearly raises a question of law. Whilst it is indeed the correct position on the basis of Section 98(10) of the Labour Act [Cap 28:01] that this Court only has jurisdiction to hear an appeal against an arbitral award on a point of law where however there is a serious misdirection on the facts that amounts to a misdirection in law thus raising a ‘question of law’. A misdirection of fact can be a finding of fact contrary to the evidence actually tendered (see Reserve Bank of Zimbabwe vs. Corrine Granger (2) Martha Matamisa SC 34/2001 or a finding of fact based on no evidence see Triangle Limited vs. Phiri SC 107/04.

Having concluded that the appeal grounds raise points of law I proceed to determine the same seriatim.

It is very clear that the first ground is merited. The Arbitrator clearly erred in concluding that appellant was entitled to pay outstanding overtime where no evidence had in fact being tendered before him to establish the claims. The Arbitrator also clearly misapplied the duty and onus to prove the claim on the appellant. It is correct position at law that the duty to prove a claim lies on the claimant. In casu the duty clearly lay with the respondent as the claimant before the Arbitrator to prove the actual days worked overtime. It was not proper for the Arbitrator to have shifted the onus onto the appellant on the basis that it was the custodian of records. In First Mutual Life vs. Jackson Muzivi 2007 (1) ZLR 325 (S) the Court ruled;

“The suggestion that the employer failed or refused to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue. It is the respondent who had the onus to prove his claims.”

See also Heywood Investments (Pvt) Ltd. t/a GDC Hauliers vs. Pharoah Zakeyo SC 32/2013.

The second ground of appeal is equally merited. Even though appellant was under no obligation to produce the evidence the appellant however tendered evidence to show that respondent had been paid all his dues. Respondent attitude to the evidence so tendered which was in the form of payslips bank transfer slip was that he was seeing the documents for the first time. Respondent did not challenge the authenticity of these documents. Respondent did not produce any evidence to controvert the evidence so tendered by the appellant. The Arbitrator in his award completely ignored the evidence. He made no findings on the evidence tendered. He seemed to have accepted wholly respondent’s position that the onus was on appellant to produce the attendance record which position was clearly wrong. The Arbitrator clearly erred and misdirected himself in ignoring evidence that had been placed before him. The arbitral award clearly cannot be allowed to stand. The appeal accordingly succeeds. The arbitral award handed down on the 30th of June 2015 is hereby set aside.