Vacjet Consultants (Pvt) LTD V Simbarashe Maziwisa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/310/16
HELD AT HARARE 15 MARCH 2016
CASE NO
JUDGMENT NO LC/H/310/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/310/16

HELD AT HARARE 15 MARCH 2016				CASE NO LC/H/1003/15

& 27 MAY 2016

In the matter between:

VACJET CONSULTANTS (PVT) LTD				Appellant

And

SIMBARASHE MAZIWISA					Respondent

Before The Honourable B S Chidziva, Judge

For Appellant			Mr N Chimuka (Legal Practitioner)

For Respondent		Mr T Thodhlanga (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the determination by Honourable arbitrator J N Madziya on 6 October 2015. The award states as follows

“It is be and hereby ordered that Simbarashe Mazivisa being the claimant be paid the following by Vacjet Consultants being the respondent

Back pay from July 2014 0 June 2015 $400 x 12 months  = $4 808.00

Cash in lieu of notice 3 months x $400 = $1200.00

Leave days month salary $400.00

Outstanding salaries = $2150.00

Damages (3) months salary $400.00 = $1200.00

Total $9750.00

This amount is subject to any statutory deduction.

This award to be implemented 21 days from date of receipt of this award

So I award.”

The brief history of the matter is that respondent was suspended from employment.  He had been employed by appellant as an assistant operator from 28 March 2014 until June 2014.  A hearing was not conducted.  He was suspended without pay and benefits.  He further asked to collect his benefits at a later stage.  When the matter went for arbitration respondent had been on suspension for more than a year.

The grounds of appeal before this court are that

The arbitrator erred by treating back pay and damages separately with back pay as part of damages.

The arbitrator erred by finding that the respondent was unlawfully dismissed just because of the lapse of time and also because the appellant could not hope to conduct the disciplinary hearing for the respondent after a long period.  At law a lapse of time does not precipitate into a finding that an employee has been unlawfully dismissed.

The arbitrator erred in law by failing to consider the fact that the respondent had obtained alternative employment.

The arbitrator erred by awarding the respondent damages in the sum of $1200.00 when the respondent did not either claim the said damages in his statement of claim or adduce any coincidence  to substantiate that he was entitled to damages equivalent to 3 months salary.

The arbitrator erred at law in awarding the respondent damages in the sum of US$1200.00 in addiction to an award of back pay which is also treated as damages in terms of the law.

This will cause appellant to compensate the respondent twice.

The arbitrator erred at law in holding that the appellant did not discharge the onus to prove that the respondent had secured alternative employment when the appellant had requested the arbitrator to subpoena the respondent’s new employer but went on to make his award without subpoening the new employer.  Therefore the arbitrator determined the matter without affording the appellant a chance to be heard in full.

The arbitrator misdirected himself at law when he awarded in favour of the respondent the sum of US$2 150.00 as arrear salaries when evidence was presented to him showing that the respondent had paid the sum of US$1344.00 towards the salary arrears thus leaving a balance of US$806/00 only.

The arbitrator erred by not affording the appellant the option to reinstating the respondent after the arbitrator had made the finding that the respondent had been unlawfully dismissed.  At law the arbitrator had an obligation to give the appellant the option of reinstating the respondent

The appellant on these grounds therefore prayed for the parts of the arbitral award

dated 15 October 2015 being challenged to be set aside with costs.

The respondent in response submitted that

The appeal is frivolous and lacks merit

The appeal is not on a question of law and should be dismissed with costs.

It is common cause that

Respondent was suspended for more than a year

Respondent eventually collected his terminal benefits

A hearing was not until the time of arbitration

What is to be decided is whether

The grounds of appeal are on question of law or not

The grounds of appeal are frivolous or not

The remedy thereof

The case of Muzuva v United Bottlers (Pvt) Ltd 1994 (10 ZLR 217 has clearly defined

the question of law as follows

“a)	a question which the law itself has authoritatively answered  to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter

b)	a question as to what the law is.  Thus on appeal on a question of law means an appeal in which the question of argument and determination is what the true rule of law is on a certain matter.

c)	any question which is within the province of the judge instead of the jury is called a question of law.

The issues that were raised by the appellant are

Repudiation of contract

Legality and effect of the long suspension

Damages and back pay

All these have not been factual findings but questions of law arose from the

arbitrator’s findings in the matter.  Therefore this court does not agree with respondent’s claim that they are questions of fact and not law.  Most of the issues raised are there for the court to state what the law is.

The 3rd ground of appeal by appellant is that the arbitrator erred by finding that respondent had not found alternative employment.  The appellant never stated who the new employer was.  Respondent on the other hand denied being employed anywhere.  It was the appellant who was claiming that respondent was employed somewhere thereby repudiating the contract of employment.  It is the duty of the one who alleges to prove his claim.  This principle was clearly enunciated in the case of Astra Industries Ltd v Peter Chamburuka SC 27/12 where it was stated that

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

It was therefore not the duty of the arbitrator to subpoena the new employer to corroborate the appellant’s claim.

The respondent was suspended for a long time without any hearing being conducted.  He claims that he was eventually called to collect his terminal benefits thereby indicating termination of the contract between the parties.  The respondent states that he was called to collect his terminal benefits.  On the other hand the appellant states that respondent claimed the terminal benefits.  There has not been any documentary evidence to show that respondent claimed his terminal benefits or that appellant advised respondent to come and collect his terminal benefits.  It is the respondent who took up the matter to the arbitrator claiming that he had been unlawfully dismissed.  Appellant also agrees that it paid respondent some terminal benefits.  Suspending the respondent and then going on to pay terminal benefits without conducting a hearing amounts to unlawful dismissal.

Section 12 B (2) (a) of the Labour Act states that

“An employee is unfairly dismissed if subject to subsection (3) the employer fails to show that he dismissed the employee in terms of an employment code.”

Therefore by paying terminal benefits without showing the code under which the respondent was dismissed the appellant unlawfully dismissed the respondent.  Had the appellant only ended at suspending the respondent for a long time this would be repudiation of contract and the only remedy for respondent would have been suing for damages for breach of contract.  The case of United Bottlers v Kaduya SC63/08 explained this position when it stated that

“An unlawful suspension of an employee is a repudiation of the contract of employment by the employer.  The employer can elect to either accept the repudiation or enforce the contract.”

In this case after termination of contract the respondent decide to claim damages and other benefits.

The appellant also stated that by failing to give an alternative award of reinstatement to damages it erred.  However looking at the history of the matter such an order would have been futile. This is so because after being suspended for a year without a hearing respondent was called to collect his terminal benefits thereby showing that the relationship between the parties was so bad that they could no longer maintain the relationship.

The appellant has also submitted that the arbitrator erred by awarding respondent damages when he had not claimed the damages.  However in respondent’s submissions before the arbitrator dated 2 June 2015 the Secretary for Legal Affairs ZFTU prayed for the award of damages in lieu of reinstatement.   Furthermore the terms of reference before the arbitrator was that he was to determine the remedy in view of all that had happened to respondent.

The case of Leopard Rock Hotel Co (Pvt) Ltd v Hilary Van Beek SC 6/2000 clearly explains the issue of “back pay” and “damages” as follows

“Back pay is thus a concept associated with reinstatement.   If an employee is reinstated she will normally be awarded back pay.  If she succeeds in proving wrongful dismissal but is not reinstatement, she will be entitled to “damages” a major element of which will be back pay.  Perhaps more correctly one should say the damages will be assessed by reference to the back pay lost.  But here the back pay will be limited to a period from the date of wrongful dismissal to a date by which she could with reasonable diligence have obtained alternative employment.”

From the foregoing the respondent is therefore entitled to damages which comprise of

Back pay for the period from wrongful dismissal to the date by which the respondent could with reasonable diligence have obtained alterative employment.  In this case respondent was suspended in July 2014.  He was then dismissed in July 2015.

Given the definition of damages given in the case above there should be payment for

salaries for the period within which the respondent should have obtained alternative employment.

To that end therefore this court orders as follows

Respondent was unlawfully dismissed.

The matter is referred back to the arbitration for him to show how he calculated the 3 months damages.

Appellant shall pay costs.

Messrs Mawere Sibanda, appellant’s legal practitioners

Thondhlanga & Associates, respondent’s legal practitioners