Zimbabwe National Roads Administration v Natsai Dodo Shoko

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/188/25
HARARE, 12 FEBRUARY, 2025 AND
14 MAY 2025
CASE NO LC/H/885/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/188/25

HARARE, 12 FEBRUARY, 2025 AND

14 MAY 2025	CASE NO LC/H/885/24

ZIMBABWE NATIONAL ROADS ADMINISTRATION	APPELLANT

NATSAI DODO SHOKO	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- R. T. Muzonzini, Attorney

For Respondent	- F. Chinwadzimba Advocate

MUSARIRI, J:

On 17th July, 2024 Arbitrator J Murakata issued an award which ordered appellant to pay respondent (its ex-employee) US$23,000.00 as outstanding school fees. The award also declared that respondent is entitled to purchase the ‘organisation vehicle’ from appellant. Appellant then appealed the award to this Court in terms of section 98 (10) of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal initially were four-fold but appellant abandoned the 4th ground. The remaining grounds read as follows,

“1.  The Arbitrator grossly erred in law and misdirected himself in finding that the claims by the Respondent constituted a continuous unfair labour practice and therefore Respondent’s claims had not prescribed in terms of Section 94(1) of the Labour Act [Chapter 28:01].

The Arbitrator erred in fact in finding that the Appellant’s failure to fulfil the school fees benefit was done in a discriminatory manner in the absence of evidence to support such a claim, which misdirection was so gross as to constitute a misdirection in law.

The Arbitrator grossly erred and misdirected himself in law in failing to appreciate that any claims arising before 22 February 2019, if valid, were subject to the provisions of Section 22 (1) (d) of the Finance Act (No 2 of 2019) and therefore could not be claimed in United States Dollars.”

Appellant prayed that the arbitral award be set aside. In her opposing affidavit, respondent countered thus,

“Ad Ground of Appeal 1

With regards to school fees, the finding that the debt was tacitly acknowledged cannot be faulted. In addition, the Arbitrator made findings that the claim constituted a continuous wrong. Reference is made to paragraphs 56-57 of the award.

The above finding shows that the respondent continued making demands for her claim to no avail. The claim in the circumstances could not have prescribed. The clam constituted a continuous wrong.

The ground of appeal refers to a finding which was not made. A reading of the award shows that the Arbitrator did not make any finding that the failure to fulfil school fees benefit was done in a dis-criminatory manner. The ground of appeal cannot be sustained both in fact and in law. Accordingly it ought to be dismissed.

Ad Ground of Appeal 3

With regards to school fees, they were paid in United States Dollars. The learned arbitrator dealt with this aspect aptly in paragraph 55 of the award.”

Respondent prayed for the dismissal of the appeal.

The grounds of appeal and response thereto raise 2 (two) issues which will be addressed ad seriatim.

Whether appellant’s school fees claim had prescribed;

In her Statement of Claim dated 29th April 2024 respondent stated that

“10. In addition, the Respondent [now Appellant] undertook in terms of the employment contract to pay school fees for the claimant’s children. The Respondent has however, failed to meet this obligation from 2018 up to 1st school term in 2021.

The outstanding school fees from 2018 up to 2021 amounts to USD $23 000.00 (Twenty- Three Thousand United States Dollars). I annex hereto a fees statement schedule as annexture C.

The Claimant has continued to make demand for the outstanding school fees up until the time she resigned in July 2023. Notwithstanding demand, the Respondent has failed to pay the same.”

In his award, the Arbitrator opined that,

“24. The unfair labour practice in the form of a non-payment of fees and failure to give the Claimant her motor vehicle was continuing up to the period of her resignation in July 2023. The claims are thus well within time. None of the claims have prescribed in the given instances.

The Claimant continuously made follow ups regards the payment of the fees. The Respondent never complied. The Respondent never denied liability in terms of the contract. This has an effect of interrupting prescription. Section 19 of the Prescription Act in this regard states as follows;

‘The running of prescription shall be interrupted by an express or tacit acknowledgment of liability by the debtor.’

The Respondent did not, at any given instance refute the fact that it owes the Claimant educational benefits. Although not expressly, the Respondent tacitly acknowledged the debt. This claim therefore cannot be said to have prescribed. The acknowledgment interrupted the prescription. The claim for fees is well founded and well established. The Claimant is therefore, in my view, entitled to the payment of the Educational Benefits from 2018.”

The applicable law is set out in Section 94 of the Labour Act which provides that,

“(1) Subject to subsection (2), no labour office shall entertain any dispute or unfair labour practice unless-

It is referred to him; or

Has otherwise come to his attention; within two years from the date when the dispute	or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.”

This provision means that any claim older than 2 years cannot be dealt with by a Labour Officer unless it is a continuing unfair labour practice. This means at the time of the claim in casu (29 April 2024) claims predating 29 April 2022 could not be dealt with unless they were continuing. Applicant’s statement of claim stated that the outstanding school fees arose between 2018 and 2021. The issue then becomes whether the non-payment of the fees amounts to a continuing unfair labour practice.

Appellant relied on the case of

Mawire vs Rio Zim SC 13/21

Per Mavangira JA at P9

“Thus the appellant would have a legitimate cause to raise a complaint with a Labour Officer each time the allowances were not paid in terms of the contract and each time when the annual bonus was not paid in terms of the contract. Each non-payment on its own would be enough to constitute a cause of action which entitled the appellant to file a claim.

Whenever there was non-payment of the appellant’s perceived dues that would be a complete infraction. For that reason, it cannot be said that the unfair labour practice would have been continuous in nature and not subject to prescription.”

(Underlined for emphasis.)

By parity of reasoning respondent’s claims had prescribed in 2023 before the claim which was made in 2024. The claim for outstanding school fees was not a continuing unfair labour practice. Respondent sought to rely on the case of Triangle v Mutasa SC 77/21. The Mutasa case references continued “discrimination” which is not applicable in casu. The Arbitrator did not make a finding of discrimination.

Whether respondent’s claims converted from foreign currency to local currency in terms of the Finance Act (No 2 of 2019):

In light of the Court’s conclusion on the first issue, the currency matter became academic and thus moot.

Conclusion

In light of the aforegoing analyses, the issues resolved in favour of the appeal. Therefore the appeal, laden with merit as it is, ought to succeed.

Wherefore it is ordered that,

The appeal be and is hereby allowed.

The award issued by Arbitrator J Murakata on 17 July 2024 is set aside and substituted thus

“The Claimant’s claim be and is hereby dismissed.”

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E