Winai Ndarazi v Halo Trust

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/263/25
HARARE, 16 JULY 2025 AND
28 JULY 2025
CASE NO. LC/H/454/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/263/25

HARARE, 16 JULY 2025 AND

28 JULY 2025	CASE NO.	LC/H/454/25

WINAI NDARAZI	APPELLANT

HALO TRUST	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-	W. Ndarazi, Appellant

For Respondent	-	S. Sadomba, Respondent

MUSARIRI, J:

On 25 April 2025 at Harare, Designated Agent (DA) S. Nehohwa issued a determination which dismissed appellant’s claims against respondent for unpaid leave and overtime. Appellant then appealed the determination to this Court in terms of Section 92 D of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the appeal.

The grounds of appeal were quartet as follows;

“1. The Designated Agent Honourable Nehowa erred in dismissing claim citing the register and the contract as proof of payment.

The issue in dispute was whether or not the applicant was paid overtime and leave days hence the request of proof of payment.

The respondent in his notice response and oral submission failed to provide tangible and supporting evidence that the overtime and leave days was paid to disprove the statement of claims by the appellant.

The contract of employment and register cannot be said to be proof of payment in terms of

the law.”

Respondent’s opposing affidavit countered that;

“Ground One

6 Even assuming that this ground is valid, there is no way the Designated Agent would have considered Appellant’s claims without reference to the contract of employment and the Attendance Register.

Ground Two

9 What was before the court a quo was whether Appellant’s claim relating to overtime and leave was valid. The Court a quo, in light of the evidence submitted by the Respondent, found that Appellant’s claim was baseless.

Ground Three

12 What the Appellant is doing is try to challenge the factual findings of the NEC Designated Agent.

There is no basis to challenge those factual finding since they were based on the evidence led by the parties at the hearing.

Ground Four

16 However, and in any event, the contract of employment and the register were produced before the court a quo to demonstrate that the Appellant’s claims had no merit. The Court a quo was within its rights to refer to those documents in dealing with the Appellant’s claims.”

The grounds of appeal and response thereto raise a single issue.

Whether the Designated Agent (DA) wrongly found that appellant’s claims for unpaid

leave days and overtime were not proved:

In his determination, the DA opined as follows;

“On carefully analysing the documents submitted by both parties as well as the oral evidence led, the Tribunal noted that on leave days the contract signed by both parties clearly states that in section 7 par a ‘staff are entitled to 2.5 days per month worked which amounts to 30 days per year. For operations staff, Halo spreads these days across the year with periods of block leave every month.” The Claimant during oral proceedings accepted that she was allowed to go on leave using the operational calendar and was paid full salary every month. The Claimant also confirmed that over and above the normal leave she would also be granted other leave days like special and sick leave. On looking at the evidence sub mitted by the Respondent, it is evident that the Claimant enjoyed more leave than that stipulated by the law and it will be an act of double dipping if the Claimant is to be awarded cash in lieu of leave 90 days as claimed. The Claimant was also fully aware of this condition as she signed the contract and the caveat subscript rule applies in this case. The Claimant enjoyed a minimum of 82 days per year whilst the law provides for 30 days. The Respondent was actually offering more favourable conditions and hence cannot be punished for that. The claim is therefore dismissed.

The claim for overtime is also not supported by any evidence and the Tribunal noted that what the claimant is claiming as overtime is already catered for by the Respondent in the contract under section 8(b) of the contract ‘Sundays are compensated for in days off at month’s end.’ Evidence in the form of Register and contract was submitted by the Respondent to show that these were paid. The claim is dismissed for lack of merit.

Determination…”

The DA’s finding apropos leave days cannot be impeached. It is a factual finding based on the evidence placed by the parties before him. The evidence took the form of the employment contract and attendance registers. From the contents of the documents the DA found that “the Claimant enjoyed more leave than that stipulated by the law.” Such findings of fact will not be interfered with in the absence of gross irregularity/ irrationality.

See  Hama v NRZ  1996(1) ZLR 664(S)

Per Korsah JA at 670 C

“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 accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at such a conclusion.”

In casu appellant was unable to show any irrationality in the DA’s assessment of the evidence. As regards overtime, worked on Sundays, the issue is settled by reference to the provisions of the relevant CBA, that is, the Collective Bargaining Agreement: Welfare and Educational Institutions, S.I. 102 of 2014. The applicable provisions in the CBA provide as follows,

“23(3) An employer may require an employee to work on any industrial holiday, in which case he or she shall be paid in terms of subsection (3) of section 15 in respect of time worked, in addition to the payment prescribed in subsection (2).”

“15(3) Notwithstanding … the employer shall pay for overtime-

(b) outside the ordinary hours of the day of the week on which the industrial holidays falls at

double the employee’s current hourly wage.

(4) In lieu of payment for overtime, an employee may at his or her own request, be allowed time-off during the normal working hours equivalent to-

(b) double the amount of time worked in terms of subsection (2) or paragraph (b) of subsection

(3).”

Underlined for emphasis.

Apparently respondent used those provisions to compensate appellant for overtime worked on Sundays by allowing her time-off during normal working hours.

In all the circumstances it is concluded that the Designated Agent’s determination was correct in both fact and law. Accordingly the appeal ought to be dismissed as devoid of merit.

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