Super Trading v Ishmael Kapitano and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/03/2013
HELD AT MASVINGO ON 22 JULY, 2012
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/MS/03/2013

HELD AT MASVINGO ON 22 JULY, 2012		CASE NO. LC/MS/51/2011

AND 22 NOVEMBER, 2013

In the matter between

SUPER TRADING						-	Appellant

And

ISHMAEL KAPITANO AND OTHERS			-	Respondent

Before The Honourable B.T. Chivizhe, Judge

For The Appellant		:	Ms E. Gonese (Legal Practitioner)

For The Respondent	:	Mr T.H. Tavengahama (Paralegal Officer)

CHIVIZHE, J.

This is an appeal against an arbitral award handed down at Masvingo on the 14th of October, 2011.  The Respondent opposes the appeal and has also noted a cross-appeal against the same arbitral award.

The background facts to the matter are as follows;

The Respondents were employed by the Appellant on fixed term contracts.  They were employed as Shop Assistants Grade 4 (as submitted by Appellant and rebutted by Respondent) in respect of Kapitano, Davison Gavaya and Cashier grade 6 (Jane Madondo).  The terms of office were supposed to expire in the case of I. Kapitano in May 2011, for D. Gavaya on 5 June 2011 and for Jane Madondo on 31 May 2011.  After the expiry of their fixed terms of contract the Respondent lodged claims before the Labour Officer.  The issues in dispute were non-payment of salaries underpayment of wages, casualization of labour, unfair dismissal, non-payment of overtime and terminal benefits.  When conciliation failed, the matter was referred to an Arbitrator.

In his award handed down on 14 October, 2011 the Arbitrator found that the Respondent were entitled to be paid for overtime worked; the Respondent were being underpaid; the Appellant was required to pay the Respondent cash in lieu of notice; the Respondents were to be paid for their leave days.  The Arbitrator then ordered that the Respondents be paid in total US$1 957.12 in two equal monthly instalments not later than 31 October and 30 November 2011.  Dissatisfied with the award the Appellant appeals against the award.

The appeal has been noted on the following grounds;

OVERTIME

The Arbitrator erred in awarding overtime to the employees because any overtime is sanctioned by the employer and the employer does not have record of overtime worked so the employee should produce record to that.

UNDERPAYMENT OF SALARIES

There is any agreement to that (see attached copy).

NOTICE OF PAY

In this analysis the Arbitrator acknowledged that the employee were indeed on fixed contract and according to Section 12(4)(D) Amendment Number 17 of 2002 Labour Act Chapter 28 of 2001 which was followed.  So the employer is worried how the Arbitrator arrived on awarding when the correct procedure was followed.

LEAVE DAYS

All the employees have had exhausted their leave days and there are records to that (see attached copy).

The Respondent has also noted a cross appeal against the same award.  It was the Respondent’s submission that the Arbitrator erred at law in ordering underpayments using figures that were below those provided for under the relevant Collective Bargaining Agreement.  It was Respondent’s further submission that the Arbitrator again erred in awarding cash in lieu of notice when he relied on notice periods that were below those provided in the Labour Act [Chapter 28:01].

There are four issues raised by this appeal.  The issues are-

Whether the Respondents were underpaid;

Whether the Respondents worked overtime;

Whether the Respondents were given requisite notice in terms of the law;

Whether the respondents were entitled to be paid for leave days.

I shall address the issues seriatim.

Underpayments

The Respondents submitted before the Arbitrator that they were underpaid during the period March 2011 and April 2011.  The Appellant had printed pay advice slips with correct minimum wages but only deposited half salaries in their accounts.

The Appellant’s argument before the Arbitrator was that the parties had reached mutual agreement that the employees would work short hours and therefore be paid half salary for the period.  The Arbitrator on the basis of lack of evidence of the mutual agreement dismissed the Appellant’s submission and found that the Respondents were underpaid during the period.  The Appellant through counsel argued before me that the Respondent had by mutual agreement agreed initially orally to institute short time work and later reduced into writing.  It was Appellant’s submission that the Respondent had appended their signatures onto a document.  Appellant then attempted to produce the document.  The Respondent through their Representative objected to the production of the document on the basis that it had not been produced before the Arbitrator.  The objection was upheld.  Appeals in the Labour Court are based on four corners of the record.  The purported document not having been produced before the Arbitrator was disallowed.  I consequently cannot find anything wrong in the approach taken by the Arbitrator

The Respondents have in their cross appeal before this court submitted that the figures relied upon by the Arbitrator to calculate the underpayments were wrong as they were hinged on the wrong Collective Bargaining Agreement.  It was Respondent’s submission that the Respondents’ business falls under Commercial sectors and during the period under review the negotiated minimum salaries in the relevant Collective Bargaining Agreement were US$229 per month for shop sales persons and US$247 for cashiers.  There was therefore according to Respondents submission a variance of US$79 and US$97 in respect of the shop sales persons and cashier respectively.  The issue of the variance was raised by Respondents, in their heads and orally by their representative before me.  The Appellant did not rebut the submissions by the Respondent.

The Appellant having failed to produce evidence to support its case the Arbitrator did not err when he concluded that the Appellant had underpaid Respondent.  The Arbitrator however erred in relying on the wrong Collective Bargaining Agreement.  That point was not contested by the Appellant.  The Respondents are therefore entitled to be paid the variance as claimed.

Overtime

The Respondents before the Arbitrator submitted that they were subjected to overtime.  The Arbitrator ruled that the Respondents be paid for the hours exceeding those stipulated under the relevant legislative Statutory Instrument 45 of 1993.  The Appellant has submitted in this appeal that the Arbitrator erred in accepting the Respondents’ claims in the absence of any evidence such as the record of overtime.  The Appellant submission is that the Respondents ought to have produced before the court the relevant time books to prove that they worked the overtime as claimed.

The Respondents submits that they were logging in and out of time books which were provided by the Appellant on daily basis.  The onus was therefore on the Appellant to produce those books to the court.  The Respondent relied on Section 125 of the Labour Act [Chapter 28:01].  I agree wholly with submissions by Respondent.  The obligation to keep records such as time worked lies with the employer.  Section 125(1) of the Act reads;

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.

Cash in lieu of notice

The Respondents before the Arbitrator also claimed cash in lieu of notice.  The Arbitrator found in favour of the Respondents.  The Appellant’s submission before the Labour Court is that the Respondents were not entitled to cash in lieu of notice.  The submission was made by the Appellant that requisite notice was given.  Appellant’s defence appears to be a bare denial.  It is clear from the record that the Appellant terminated the contracts of employment for Respondents without giving the requisite notice in terms of Section 12(4) [Chapter 28:01]of the Labour Act.  The Respondents are clearly entitled to be paid cash in lieu of notice.

The Respondents have also in the cross appeal raised the issue that the Arbitrator erred on the issue of period of notice, that it ought to have been one month salary for Kapitano having served for 7 months, two months’ salary for Gavaya having served 14 months and 3 months for Madondo having served 24 months consecutively.  The Appellant failed to rebut the submission by Respondents.  The Respondents are consequently entitled to the cash in lieu of notice as claimed.

Cash in lieu of leave

Finally the Respondent claimed for cash in lieu of leave before the Arbitrator.  The Appellant opposed the claim on the basis that Kapitano and Madondo had exhausted their leave days.  The Appellant conceded to only paying Davison for 13 leave days.  The Arbitrator found that all the Respondents were entitled to be paid for the leave days.

The onus is on the employer to prove that the employee has exhausted leave days.  The Appellant in this case failed to prove before the Arbitrator that the two Respondents had actually exhausted leave days as suggested.  Although in the present appeal before the Labour Court the Appellant purported to attach the records, the records were not attached to its papers.  In the circumstances the court finds that the Arbitrator did not err when he concluded that all the Respondents not having been paid were entitled to payment of cash in lieu of leave as part of the terminal benefits.

The appeal consequently stands to be dismissed.  The cross appeal is allowed.  It is accordingly ordered as follows;

The appeal be and is hereby dismissed.

The cross-appeal be and is hereby allowed.

The arbitral award is set aside and substituted with the following;

The Appellant is hereby directed to pay the Respondent’s outstanding salaries amounts as underpayments, overtime and terminal benefits as follows;

Gonesi and Partners Legal Practitioners, Representing the Appellant.

Zimbabwe Congress of Trade Union Representing the Respondents.