Sirtech Investments v Clement Manika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/664/2014
HARARE, 16 SEPTEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/664/2014

HARARE, 16 SEPTEMBER 2014		           	         	         CASE NO. LC/H/338/14

AND 10 OCTOBER 2014

In the matter between:-

SIRTECH INVESTMENTS 				Appellant

And

CLEMENT MANIKA					Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. Mazhawidza (Human Resources Officer)

Respondent		In Person

MAXWELL, J:

This is an appeal against an arbitral award in favour of Respondent.  Respondent was employed by the Appellant as a Class 4 Moulder as from 4 September 2006.  Respondent alleges that in January 2009 a supervisor advised employees to stop reporting for duty.  He further alleged that towards the Easter Holiday in 2009 the General Manager, Mr. N. Nyemba informed him to report for work.  When he approached the Appellant he was advised that the situation had not changed.  Again around early June 2009 Respondent alleges he was advised to report to work.  On arrival he was advised that the company could only accommodate twelve employees.  Contract workers and Respondent’s juniors were accommodated.

Respondent alleges he continued checking with the Appellant every now and then but nothing materialized.  In September 2009 Respondent was employed by Nandos.

In June 2011 Respondent referred the issue of non-payment of wages and unfair dismissal for conciliation.  The issue was not settled and was thereafter referred to arbitration.  The arbitrator ordered that Respondent be paid back-pay for the period February 2009 to August 2009 at the NEC Collective Bargaining Agreement rates for skilled worker class 4, a total of $1 306.44.  The award was rendered on 17 March 2014.

On 17 April 2014 Appellant noted this appeal.  The grounds of appeal are

The Honourable Arbitrator erred by determining the matter without considering the factual issues testified to or argued in the Heads of Argument by the Appellant as evidenced in the Analysis of the arbitral award.

The court a quo erred by finding that there is no proof of the Respondent’s absenteeism because the Appellant did not conduct a disciplinary hearing against the Respondent.

The arbitrating authority erred by ignoring that a worker has a duty to make his services available to the employer, from the agreed time and in terms of the contract.

The honourable Arbitrator erred by ignoring the principle of “no work – no pay”.

The Court a quo erred by overlooking the fact that the Appellant can only continue to remunerate the Respondent upon tendering of services as confirmed by the term “wage” defined in the Statutory Instrument 282 of 1990 Collective Bargaining Agreement: Engineering and Iron and Steel Industry.

The arbitrating authority overlooked the fact that if an employee fails to avail herself or himself for a protracted or long period, it may be inferred that the worker has deserted or repudiated the contract.

The Court a quo failed to consider that the Respondent left the employ of the Appellant for INNSCOR Africa Limited without giving or serving notice as stipulated by section 26 (7) of the Statutory Instrument 282 of 1990 Collective Bargaining Agreement: Engineering and Iron and Steel Industry.

Respondent filed a response on 22 May 2014 in which he asked a lot of questions.  He further stated that Appellant breached the offer letter and must be made to bear the cost of not giving notice.

Appellant does not dispute that proper procedures for terminating Respondent’s contract of employment were not followed.  It seeks justification from the fact that Respondent was not reporting for duty and therefore the principle “no work no pay” should apply.  Appellant also sought to rely on Respondent’s previous conduct as proof that he could not be telling the truth that a supervisor asked him not to report for work until further notice.

The honourable arbitrator found that there is no proof of absenteeism and the applicant (Respondent in casu)’s position should be upheld.  He further held that between January 2009 and September 2009 the Applicant’s contract was still existing because no legal action was instituted against the Applicant for the period the respondent alleges he was absent.  The arbitrator’s reasoning cannot be faulted.

Pages 42 – 46 of the record of proceedings contain the offer of appointment to Respondent which was duly accepted.  On page 43 under “notice” it is stated that two weeks notice to terminate will be required for employees on probation whilst three months will be required after probation.  Section 12B of the Labour Act [Chapter 28:01] provides that an employee has a right not to be unfairly dismissed from employment.  It further provides that a dismissal shall be unfair unless it has been effect in terms of a registered employment code, or if such is not available, the Labour National Employment Code of conduct SI 15/06.

The Supreme Court had occasion to deal with similar circumstances in the case of Augustine M. Tirivangana v The University of Zimbabwe SC 21-2013.  In that case the Appellant had not been reporting for duty from October 2008 to August 2009.  Nevertheless the Supreme Court held that the onus is on the employer to show that the dismissal of an employee was effected in terms of a registered employment code.  In the case of Astra Holdings (Pvt) Ltd v Peggy Kahwa SC-97-04 it was held that an employer is under a contractual obligation to pay the employee salary and benefits due to him in terms of the contract of employment until its lawful termination as long as he is ready to discharge his side of the bargain.  Appellant made reference to the case of Girjac Services Pvt Ltd v Mudzingwa 1999 (1) ZLR for the position that a worker has a duty to make his services available to the employer from the agreed time and in terms of the contract.  However in that case it was held that where an employee absents himself from work, under common law the employer would have been justified in terminating the contract.  It was further held that he could not do so under the Labour legislation and should have followed the required procedures if he wished to terminate the employee’s contract.  The employer’s failure to do so made the termination unlawful.

The Appellant argued that by not coming to work Respondent had repudiated the contract of employment.  In my view the employer should have accepted the repudiation and proceeded to lawfully terminate the contract of employment on that basis.  The Respondent’s absenteeism averted a basis for disciplinary action.  His past conduct cannot be used to condone Appellant’s non-compliance with termination procedures.  In any event Appellant had condoned Respondent’s past conduct and allowed him to work without facing disciplinary action.

Appellant seeks to place reliance on the case of National Railways of Zimbabwe v Zimbabwe Railway Artisans Union SC-8-05 in collective job action for principle “no-work no pay”.  In my view that authority is distinguishable from the present case as section 107 of the Labour Act [Chapter 28:01] allows an employer to withhold payment of salaries and benefits for the period in which a worker participates in a collective job action which is unlawful.

In the case of City of Harare v Zimucha 1995 (1) ZLR 285 the Court commented that a question mark was hanging over the issue of whether the employment was lawfully terminated in circumstances where the employee was absent due to illness.  The case of Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1998 (1) ZLR 143 confirms the position that an employee must continue to hold himself available to perform his duties even where he is on suspension.  By implication the employee would be entitled to remuneration for that period he is holding himself available.

The arbitrator in this case did not hold that Respondent was not available for the period February 2009 to end of August 2009.  He took the Respondent to have repudiated the contract in September 2009 when he got employed by NANDOS.  The appeal therefore has no merit and consequently it must fail.

Wherefore it is ordered that

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