Tamuka Moyo Attorneys v Shadreck Chisoko

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/822/2016
HARARE, 12 OCTOBER 2016 & CASE NO LC/H/960/2015
30 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/822/2016

HARARE, 12 OCTOBER 2016 &			          CASE NO LC/H/960/2015

30 DECEMBER 2016

In the matter between

TAMUKA MOYO ATTORNEYS					APPELLANT

Versus

SHADRECK CHISOKO						RESPONDENT

Before the Honourable Muzofa J

For the Appellant	T Zhuwarara (Advocate)

For the Respondent	S M Chisoko (Legal Practitioner)

MUZOFA J:

The respondent was a professional assistant to the senior partner at the appellant law firm on a fixed term contract.

The employment relationship became acrimonious in May 2015. The respondent referred the matter to an arbitrator.

The arbitrator’s terms of reference were to determine whether the respondent’s contract was unlawfully terminated and to determine on any payments due to the respondent.

The arbitrator found that the contract was unlawfully terminated and ordered the appellant to pay the respondent US$7 675-00 in respect of outstanding salaries, cash in lieu of leave, notice pay and commission.

Aggrieved by the decision the appellant approached this court on appeal. Eight grounds of appeal were set out in the notice of appeal.

When the parties appeared before the court on 12 February 2016, the respondent raised a preliminary point that the grounds of appeal did not raise any question of law. I dismissed the preliminary point under case number LC/H/960/15.

The first ground of appeal impugns the arbitrator’s finding that the contract of employment was unlawfully terminated.

In order to determine the lawfulness or otherwise of the termination, the arbitrator considered the circumstances surrounding the purported termination.

Clearly these are factual findings. This court sitting as an appeal court can only interfere with factual findings where there has been a gross misdirection on the facts so as to amount to a misdirection at law.

In saying this I am guided by the case of Chioza v Siziba SC 4-15 where the court had this to say on interference with a factual finding:

“The general rule of the law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

The question is what facts were before the arbitrator? The appellant submitted that on 5 May 2015 the senior partner, Tamuka Moyo invited the respondent together with another employee one Mythel Mabika.

The objective of the meeting was to discuss a possible mutual termination of their contracts. The two were invited to reflect and submit their proposals on the severance package.

According to the appellant, the respondent misinterpreted the purpose of the meeting and concluded that it was a termination of the contract. This was clear in the respondent’s letter to the appellant dated 7 May 2015.

The respondent thereafter did not report for duty despite being advised that his contract had not been terminated, he was therefore expected on duty since the mutual termination was not concluded.

To that extent, the appellant said the respondent repudiated the contract of employment. There was no unlawful termination.

According to the respondent on the fateful day, the Senior Partner was asked when outstanding salaries were payable. In a fit of rage the senior partner summarily dismissed the respondent, gave him thirty minutes to prepare his severance terms and leave the office.

On page 44 of the record there is an affidavit sworn to by one Mythel Mabika. Her statement is that she was invited to the senior partner’s office together with the respondent. The senior partner wanted to know the cost of mutually terminating their contracts of employment. They were requested to think about it and revert to the senior partner with a proposed package. She said, they were not summarily dismissed and nob ody was given thirty minutes to vacate the office. The record also has a trail of communications that subsequently took place between the senior partner and the respondent.

What comes out from the exchanges is that the respondent stood by his word that he had been terminated and wanted his monies. The senior partner insisted there was no termination, the respondent should report for duty. However after failure to report for duty the appellant intended to commence disciplinary proceedings. It seems that the appellant eventually took the position that the respondent’s failure to report for duty was repudiation of the contract.

In my view the appellant’s version of the events is more credible. I say this based on the following reasons: Firstly the senior partner indicated throughout that the invited two employees Mythel Mabika and the respondent to discuss a possible mutual termination. Mythel Mabika’s evidence confirmed the appellant’s version of events.

I did not hear at any point the respondent dispute the presence of Mythel Mabika in this meeting. Neither did I hear her evidence being disputed.

It is trite that, that which is not disputed is taken as admitted. See Chihwayi Enterprises v Atish SC 23-07.

Sadly the arbitrator did not consider the evidence by Mythel Mabika. There are no reasons why that evidence was not considered. That was a gross misdirection.

Secondly a cue can be taken from the respondent’s communicaton to the senior partner. In his statement of claim before the arbitrator and the heads of argument before the court the respondent said, the senior partner summarily dismissed him after being asked on outstanding salaries. He was given thirty minutes to come up with a proposal of a severance package and leave. The senior partner was in a fit of rage.

A WhatsApp chat extract shows the following conversation:

“May 5, 14:14 – Shadreck LSZ: Hi cde. Salaries didn’t cme thru and landlord is fuming. Can I at least have a date when my salary will be ready so that I negotiate na landlord or else he will cancel my lease.”

This was communication from the respondent before the meeting of May 7. Clearly there was an issue of unpaid salaries.

Further to that there was communication from the respondent to the senior partner Tamuka Moyo after the meeting of May 7:

“May 11, 15:13 – Shadreck LSZ: I have thought long and hard as regards the termination of contract and the discussion we had on Friday. I feel that its best I move on. It was great being part of the firm and would wish you the best in the future. I m not sure when I should come through to get my severance package and hand in the firm assets I had in my control.”

In my view the message indicates the respondent and the senior partner had a discussion in respect of termination of the contract. It does not reflect they had a heated meeting as set out by the respondent. The respondent’s version in my view paints a picture of a meeting where orders were made, after he requested for his outstanding salaries.

There was no discussion, the respondent was ordered to set out his severance package, pack his items and leave within thirty minutes.

The communication also shows that the respondent had time to think about the termination. He clearly says “I have thought long and hard”.

The senior partner asked the two employees to think about the issue. If the respondent’s contract had been terminated it was unnecessary for the respondent to communicate with Tamuka Moyo about the termination.

Despite the fact that the respondent wrote a letter dated 7 May 2015 outlining his severance package, I believe the evidence of Mythel Mabika tips the scale against the respondent’s version of events.

To that extent, the arbitrator fell into error by ignoring this piece of evidence. There was therefore a gross misdirection on the facts.

The respondent was not dismissed but repudiated the contract after failing to report for duty. The ground of appeal succeeds.

The rest of the grounds of appeal relate to the payments due to the respondent following the termination of the contract.

Notice Pay

The appellant submitted that the respondent is not entitled to notice pay since his contract of employment was not terminated at the appellant’s instance.

In view of the court’s finding that the contract of employment was not unlawfully terminated, it follows that the respondent is not entitled to notice pay.

The second ground of appeal therefore succeeds.

Vacation leave days

The appellant submitted that the arbitrator erred in awarding the respondent thirty days leave when it was not disputed that some leave days were taken on a trip to Mozambique.

It its heads of argument the appellant relied on section 14 A of the Act which provides for vacation leave and qualifying service.

The appellant also relied on the contract entered into by the parties. Clause 7.2 of the contract provides:

“The employee shall be entitled to twenty-five working days per annum for leave in terms of the Employment Code of Conduct of the firm.”

It was submitted that the parties are bound by the terms of the contract. Reference was made to the case of Grindlays Bank Limited v Yelverton 1972 (1) RLR 364 on the doctrine of caveat subscription.

Besides, it was argued the provision in the contract is more favourable than the one in the Labour Act. However the appellant went on to rely on the Act referring to the respondent’s qualifying service.

The respondent’s claim was based on the Act. However section 14A of the Act is clear that it will only apply where there are no better conditions provided by the employer.

In casu the appellant argued that the employer provided better conditions. This was not controverted by the respondent.

Clearly the arbitrator fell into error. If the respondent had served a year and four months, he should be entitled to the contractual twenty-five days and a pro rata calculation of the four months worked.

The appellant is bound by the contract entered into by the parties. Clearly the arbitrator fell into error by relying on the Act. The basis of the claim should be the contract and not the Act.

I find no misdirection in the arbitrator’s finding that the trip to Mozambique cannot justify a deduction in the number of leave days. It was not disputed that the respondent went to Mozambique on national duty. The arbitrator correctly relied on section 33 of the Sports and Recreation Commission Act [Chapter 25:15] which prohibits employers to reduce salary, leave or other benefits as a result of such representation.

The appellant alleged some days were taken by the respondent. As correctly pointed out by the arbitrator there was no proof from the appellant. It remained a bare allegation.

There is no reason to depart from the established principle that he who alleges must prove. In casu the appellant failed to prove that the respondent took some leave days accompanying his mother to buy a motor vehicle.

There was no proof of how many leave days emanate from the four months the respondent worked. In the absence of such proof I will only grant the twenty five (25) days provided for in the contract for the one year the respondent worked.

The ground of appeal succeeds only in so far as to reduce the number of vacation leave days to twenty five (25) days. There was no monetary equivalent provided to the court, parties can calculate the amount due.

Transport Allowance

According to the appellant the arbitrator erred in awarding transport allowance when she actually accepted that the “allocations received exceed the contractual provision of 20 litres per month.”

The contract between the parties provided:

“The employee shall be entitled to 20 litres fuel allowance per month or monetary equivalent thereof. Further the employer will reimburse the employee for mileage for use of employee’s personal vehicle for the firms business conducted.”

The appellant did not deny that the respondent was entitled to the contractual 20 litres per month. The evidence placed before the arbitrator reflects that the respondent would receive varying amounts of money for fuel. The arbitrator concluded that this was not the contractual benefit but fuel for work that is why the allocation was beyond the contractual benefit. This is in tandem with the reimbursement in the clause referred to.

I am unable to fault the arbitrator’s findings.

The evidence does not show any consistent payment equivalent to the contractual 20 litres. The fluctuating amounts for fuel given to the respondent can only be work related.

Of all the requisition vouchers there’s no allocation termed indicating that it was for the contractual payment.

The ground of appeal has no merit and is dismissed.

Commission

The ground of appeal impugns he arbitrator’s award on the work done and is couched:

“The learned arbitrator grossly erred at law in awarding the respondent a share of commissions with respect of unpaid fee notes when he contract of employment clearly stipulates that commission is based on fees actually paid and received.”

In its heads of argument the appellant raised a new issue that the respondent failed to prove that he had actually raised the fee notes exceeding the target of US$4000-00. The court will not address the issue of proof, since it is not part of the grounds of appeal.

The ground of appeal is only limited to the interpretation of the commission clause.

It is not in dispute that the commission clause provided for commission of 15% of the total fees charged.

This turns on the interpretation of the term “fees charged” whether it means fees paid and received or just charged as raised on the fee note.

It is a cardinal principle of interpretation that words should be given their ordinary grammatical meaning unless that would result in some absurdity, the meaning can be adjusted to avoid the absurdity. See Madoda v Tanganda Tea Company Limited 1999 (1) ZLR 374 (SC).

The respondent submitted that commissions should be paid since work was done.

I am unable to agree with the respondent. Commission is an incentive for employees to work and increase the financial fortunes of a company. Unpaid fee notes do not turn to be monetary gain. If the court were to take the term ‘fee charged’ as to mean an unpaid fee note that would certainly lead to an absurdity.

That interpretation would mean commission is payable despite any monies being paid into the company. Where will the company get the money from? A commission is an appreciation of what has been brought into the company. An unpaid fee note remains a debt, how can a commission be paid from a debt?

The meaning of ‘fee charged’ should be taken to be the fee charged and actually paid.

There was no dispute that the respondent actually raised the two fee notes in respect of work done in the Wen Zhou Enterprises and Bern Win Property. However there was no proof that payment had been made by the said clients. To that extent the respondent would not be entitled to payment of commission until the payments are made.

The ground of appeal succeeds.

Medical Aid

The respondent conceded that the claim is misplaced. Accordingly the ground of appeal succeeds.

Compensation for stolen property

The appellant faulted the arbitrator’s finding in dismissing its counter claim for compensation of property allegedly stolen by the respondent.

The appellant made numerous claims—

$860-00 being an advance loan to the respondent for a Law Society winter school

$1300-00 for a Samsung Galaxy S5 procured in the name of the appellant.

$956-00 for a Galaxy Tab II that the respondent retained.

$400-00 for a Laptop the respondent retained.

$1000-00 for excess fuel allocation payments to the respondent.

Clearly it is far from the truth that the claims are for property stolen. Some of the monies claimed were advances. The arbitrator confined her decision to electronic goods.

The finding was that the value of the goods had not been agreed. I must add that the figures claimed were not proved by the appellant.

The arbitrator accepted the respondent’s evidence that the items were held as a lien.

I am unable to fault the arbitrator for the reason that the appellant failed to prove its counter claim before the arbitrator.

The ground of appeal is therefore dismissed.

The last ground of appeal is on the overpaid fuel allowances. The appellant submitted that the arbitrator erred by not awarding its claim for overpaid fuel allowances.

The ground of appeal has already been adequately addressed. In any event the arbitrator’s finding was that the respondent was allocated fuel in excess of the contractual benefit. It was work related. There was no proof that the respondent’s monthly 20 litres was paid.

This ground of appeal is dismissed.

From the foregoing the appeal partially succeeds.

Accordingly the following order is made.

The arbitration award be and is hereby set aside, and substituted by the following:

The claim for notice pay be and is hereby dismissed.

The claim for vacation leave be and is hereby upheld in respect of twenty-five days.

The claim for transport allowance is upheld, for 320 litres fuel or its monetary equivalent.

The claim for commission be and is hereby dismissed.

The counterclaim be and is hereby dismissed.

The claim for medical aid be and is hereby dismissed.

Each party to bear its own costs.

Tamuka Moyo Attorneys, appellant’s legal practitioners

Chadyiwa & Associates, respondent’s legal practitioners