Trust ME Security V Emmanuel Chingarande & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/168/16
HELD AT HARARE 19 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/168/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/168/16

HELD AT HARARE 19 FEBRUARY 2016			CASE NO LC/H/115/15

& 18 MARCH 2016

In the matter between:

TRUST ME SECURITY					Appellant

And

EMMANUEL CHINGARANDE & OTHERS		Respondents

Before The Honourable F C Maxwell, Judge

For Appellant			Mr C K Mutevhe (Legal Practitioner)

For Respondent		Ms M Mukucha (Trade Unionist)

MAXWELL, J:

This is an appeal against an award in favour of respondents.

Respondents were employed by the appellant on different dates.  Their contracts were terminated and they complained of

non payment of wages

non payment of cash in lieu of leave

non-payment of overtime

Non-payment of holiday allowances

Unlawful deductions; and

Non-issuance of soap and show polish.

The matter was not settled at conciliation and was referred to arbitration.  The

arbitrator awarded the following to the respondents

Garanehama A - $3 287.46 plus 10 tins of shoe polish and 18 bars of soap

Masvimbo T - $3 051.75 plus 9 tins shoe polish and 18 bars of soap.

Chingarande E - $2 577.00 plus 15 bars of soap and 9 tins of shoe polish.

Appellant was aggrieved and appealed to this court on the following grounds

The arbitrator misdirected herself in law by concluding that the claimants were not required to prove their allegations and placing the onus of proof on the applicant.

The arbitrator misdirected herself and erred in law by failing to appreciate that the claimants application had prescribed in terms of section 94 of the Labour Act.

The arbitrator misdirected herself and erred in law by awarding 1st, 2nd and 3rd respondents $2577.00, US$3 284.46 and $3 0571.75 (sic) respectively for overtime.

The arbitrator erred in law by awarding shoe polish and laundry soap benefits.

The arbitrator erred in law by misinterpreting section 7 (2) (b) of Statutory Instrument 76 of 2012.

Appellant prayed for the setting aside of the arbitral award.

In response respondents stated that appellant had the onus to produce the

documents that were required as evidence as it is the sole custodian of the needed documents. They further stated that the unfair labour practice was continuous and prescription did not apply.  Respondents also stated that the claims for overtime were not rebutted and they were entitled to shoe polish and laundry soap during the tenure of employment in terms of Statutory Instrument 76 of 2012.  They denied that there was any misinterpretation of section 7 (2) of S.I. 76/12 and prayed for the dismissal of the appeal.

1st ground of appeal – ONUS OF PROOF

The arbitrator stated that it is also the onus of the respondent to disprove claimant’s assertions since they are the custodians of the official documents which they were supposed to produce to dismiss the claims of the claimants.  The appellant argues that it is trite that he who alleges must prove and cited relevant case authority.  That is correct but the arbitrator’s reasoning cannot be faulted.  She states that the claimants managed to produce the bank statements to prove the amounts which were deposited by respondent into their accounts as salaries.  Respondent therefore had the onus of producing any documents or records that would show that the bank statements were not reliable.  The first ground of appeal therefore fails.

2nd ground of appeal – PRESCRIPTION

Appellant states that the matter had prescribed and the arbitrator should have dismissed the claim.  Appellant wrongly states that the arbitrator acknowledged that the matter had prescribed.  On page 6 of the award the arbitrator clearly states that part of the dispute falls outside the prescription period.  She goes on to say the tribunal will award the claimants claims which are within two years from the date they first arose.  The arbitrator pointed out that the matter was referred to NEC for the Security Industry on 14 April 2014.  A look at the award does not confirm that the arbitrator indicated that she excluded all the period that fell outside the prescription period.  There is no indication of what the cut off period was.  There is no indication of which period had prescribed.  The second ground of appeal therefore has merit.

Appellant states that the arbitrator should have dismissed the whole claim.  That is not correct considering that there is an indication that there is a period which falls outside the prescription period.  Respondents are entitled to their claims that had not prescribed.  The record placed before the court does not contain information for the court to be able to make a final decision on this aspect.

3rd ground of appeal – OVERTIME

Appellant argues that no evidence was led to prove the claim awarded, that there was no evidence to establish and justify the claim for overtime.  The award specifies that claimants were claiming payment for hours worked – in excess of normal hours as well as public holidays worked.  The parties’ submissions to the arbitrator were not part of of the record before this court.  However a look at page 4 of the award where the claims are summarised shows that only Chingarande was claiming for unpaid public holidays.  It is also stated on the same page that respondent submitted that claimants’ calculations are not justifiable.  On the same page again, in replication claimants had stated that respondent was supposed to produce the occurrence book, time book and all necessary documents that were used by the claimants during their tenure employment.  In my view the arbitrator cannot be faulted for relying on the calculations of the respondents in circumstances where appellant could have rebutted those calculations through documentary evidence.  In Isaac Mukwinya v Clan Transport (Pvt) Ltd SC 47/2001 it was stated what we cannot ignore the difficulties faced by relatively low key employees in asserting their rights against large companies.

In heads of argument appellant claims that through mutual agreement, the claimants were compensated for any overtime and/or public holidays that might have accrued to them in terms of section 7 (2) (b) and are therefore accordingly barred from relying on that section.  This issue was not raised before the arbitrator and it is therefore improper for appellant to raise it on appeal.  See James Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115.04.  I therefore find no merit in the third ground of appeal.

4th ground of appeal – SHOE POLISH & LAUNDRY SOAP

Appellant claims these benefits should not have been awarded as they were not proved.  The award indicates that the justification for the award was Statutory Instrument 76 of 2012.  Appellant has not disputed its applicability.  I therefore find no merit in this ground, save to relate it to ground of appeal number two.  There is need to clarify the period covered by the award.  Respondents are entitled to shoe polish and laundry soap for the period that had not prescribed when the matter was initiated.

5th ground of appeal – INTERPRETATION OF SECTION 7 (2) (b) OF S.I. 76/2012

Appellant has not pointed out the wrong interpretation given by the arbitrator.  From the award it does not appear that any information was given to counter the claim.  Appellant only raised the issue that the claimants’ calculations are not justifiable, that they are no longer employees.  I therefore find no merit in this ground of appeal.

In the final result, the appeal is partially successful.  There is need for the arbitrator to clearly state the period covered by the award.

Accordingly the following order is appropriate

The arbitral award be and is hereby asset aside.

The matter is remitted to the same arbitrator for the period covered in the award to be clarified and to exclude what had prescribed.

Muvingi & Mugadza Legal Practitioners,  appellant’s legal practitioners