Sydney Matbiri v Farmworld Hardware

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/475/16
HELD AT HARARE 23 JUNE 2016
CASE NO
JUDGMENT NO LC/H/475/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/475/16

HELD AT HARARE 23 JUNE 2016				CASE NO LC/H/199/16

& 19 AUGUST 2016

In the matter between:

SYDNEY MATIBIRI				Appellant

And

FARMWORLD HARDWARE			Respondent

Before The Honourable Muzofa, J

For Appellant			Z Mufanebadza (Trade Unionist)

For Respondent		Mrs M R Zvimba-Mukono (Legal Practitioner)

MUZOFA J:

The appellant was employed by the respondent as a supervisor.  The parties mutually terminated the employment contract on 4 November 2014.

The agreement was reduced into writing and appellant was paid his terminal benefits in terms of the deed of settlement.

In August 2015 the appellant referred a complaint to a labour officer against respondent for non-payment of overtime.

When conciliation efforts failed the matter was referred to an arbitrator.  The arbitrator dismissed the claim predominantly on the basis that appellant failed to prove his claim.

Appellant then appealed to this court.  Five grounds of appeal are set out in the notice of appeal, which to my mind raise one issue.  The issue is whether there was adequate evidence to prove appellant’s claim on a balance of probabilities.

Mr Mufanebadza from Commercial Workers’ Union of Zimbabwe submitted that the appellant produced a schedule of the dates and times that he had worked overtime before the arbitrator.  Further it was submitted that the respondent being the employer mandated at law to keep records of employment was supposed to produce the attendance register to rebut the appellant’s claim.

In the supplementary heads of argument it was submitted that the deed of settlement entered into by the parties did not bar the appellant from making a claim for overtime worked.

For the respondent a point was taken that the grounds of appeal do not raise any questions of law.  On that basis alone the appeal should fail.

On the merits it was submitted that the onus to prove the claim was on appellant.  He failed to prove that the claim had been approved.  Reference was made to the case of Chinodakufa & Others v Enquiries Committee of the City of Harare Works & Others SC 120/02.

Further it was submitted that appellant failed to show that he actually worked overtime, that respondent had no onus to prove anything in terms of section 125 of the Labour Act [Chapter 28:01] the Act.

The appeal has no merits at all.

The appeal does not raise any questions of law as submitted by the respondent.  A question of law has been aptly described in numerous cases one of which is the celebrated Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217.

It is also settled that a gross misdirection on the facst amounts to a misdirection at law.  In casu the issue for determination raised by the five grounds of appeal relates to the sufficiency evidence.

This is a question of fact.  Can it be said there was a gross misdirection on the facts?  I do not think so.

The arbitrator correctly pointed out that the onus was on the appellant to prove his claim.

The evidence placed before the arbitrator was a compilation by the appellant.  It is not in dispute that for one to work overtime, it must be approved by the employer.

Secondly there must be evidence of the register showing that the approved overtime was actually worked.

In this case appellant failed to produce such evidence.

Appellant placed reliance on section 125 of the Act.  A careful reading of that section does not support the appellant’s interpretation that the employer is supposed to produce records kept by it.

Subsection one of that section only mandates the employer to keep records of employment.

Subsection four mandates the employer to produce such records on demand by a labour officer or a designated agent in terms of section 63 (3) of the Act.  It does not shift the onus to the employer in any case involving its employees.  It is for the employee to prove its case.

I find no gross misdirection on the arbitrator’s findings.  To that extent there is no question of law to be determined.

There was no evidence to prove the claim.  Mr Mufanebadza did not make any submissions on whether the appeal raise questions of law or not.

Even if the grounds of appeal raise questions of law it would be unstainable.

The parties entered into a deed of settlement.

The deed of settlement clearly provides;

“This is in full and final settlement.  No other claims will be raised against either party as of today 4 November 2014.”

The clause is clear that no other claims will be made.  A claim of overtime is one such other claim.  The parties agreed on this clause.  Appellant agreed to close the door against himself.  The court has no option but hold the parties to what they agreed on.  This is like a contract, in Magodora & Others v Care International Zimbabwe SC 24/14 PATEL JA noted on p 7 of the judgment

“In principle, it is not open to the courts to rewrite 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.”

One of the consequences of the agreement is that no other claims will be raised.  Therefore the appellant is bound.

The claim for payment of overtime should have been made at the time the settlement was negotiated.

The appeal has not merit.

Accordingly the following order is made.

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

The claim for overtime is dismissed

Each party to bear its costs.

Zvimba Legal Practitioners, respondent’s legal practitioners