Todd Musekiwa v Pacific Bureau de Change

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/642/2016
HARARE, 22 JUNE 2016 &
CASE NO LC/H/69/2016
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/642/2016

HARARE, 22 JUNE 2016 &				           CASE NO LC/H/69/2016

21 OCTOBER 2016

TODD MUSEKIWA							       APPELLANT

PACIFIC BUREAU DE CHANGE					       RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellant	Mr A Masango (Attorney)

For the Respondent	Mr H Chitima (Attorney)

MUSARIRI J:

On 11th January 2016 at Harare, Arbitrator J Madziya issued an arbitration award. He dismissed the appellant’s claims against the respondent. The appellant then appealed to this court against the award. The respondent opposed the appeal.

The grounds of appeal are two-fold as follows:

“1.	The Honourable Arbitrator erred in dismissing the claim for back pays and holding that it had no jurisdiction to entertain the claim for back pay yet the claim for back pay was never heard at arbitration.

2.	The Honourable Arbitrator grossly erred in making a finding on facts which findings amounts to a question of law by referring to NSSA yet evidence way (sic) presented that the respondent never paid anything to NSSA and as such there was no merit in referring him to NSSA.”

Back-pay

The appellant worked for the respondent as a Finance Manager. He was dismissed on allegation of misappropriation of funds. On 3 April 2014 Arbitrator J Mateko remitted the matter “back to the company for a hearing in de novo”. He also ordered that the applicant be

paid $300-00 as cash in lieu of leave. He did not rule on the appellant’s entitlements, if any, pending fresh hearing. A hearing was then held leading to the appellant’s dismissal by the respondent in May 2014. The appellant claimed back-pay from April 2013 to May 2014. The Arbitrator reasoned that had Mateko intended to reinstate the appellant without loss of salary she should have said so. I agree with that reasoning. Any claim for back-pay in these circumstances ought to derive from Mateko’s award. It is that award which dealt with the initial dismissal of the appellant by the respondent. If there were remedies for the dismissal such ought to have been spelt out in Mateko’s award. The award granted the remedy of a fresh hearing and leave pay. If the appellant were aggrieved thereby, he should have appealed against the award. Indeed he tried to appeal but failed. I consider that the failure signalled the end of the matter of back-pay.

Pension

The appellant’s case was founded on alleged failure to remit pension deductions to NSSA. Arbitrator Madziya opined that:

“… this tribunal observed that indeed the claimant’s name did not appear at NSSA offices and as such he could not be able to access his pension. However as the case may be it is the prerogative of NSSA pension fund and Pacific to regularise this anomaly….”

However that appears contrary to NSSA’s letter dated 9th March 2015 a copy of which is filed of record. The letter is addressed to the appellant’s attorneys. It stated that the appellant’s monthly pension was $167-00. Surely that pension could only arise from deductions forwarded to NSSA by the appellant’s employer. Perhaps the appellant’s gripe was that deductions were not forwarded during a certain period. Such a case was not made or clarified. In any event it is difficult to come to a clear conclusion without a breakdown from NSSA of all the deductions received over the relevant periods. Thus on the evidence availed there was no basis for awarding the amount claimed by the appellant.

In all the circumstances the grounds of appeal were not substantiated. Therefore the appeal must fail.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J–U-D-G-E