MTSHIYA
J:
In
this consolidated action, each plaintiff claims payment of salary
arrears and allowances from the defendant.
On
22 January 2013, KUDYA J, who dealt with the Pre-Trial Conference
relating to the parties herein issued the following order:
“IT
ORDERED THAT:
1.
The parties have failed to reach a settlement.
2.
The present matter HC315/12 be and is hereby consolidated with the
case of Sameer Khan v Air Zimbabwe Holdings (Pvt) Ltd HC316/12 and
the Matter of Gerald Chiweshe v Air Zimbabwe Holdings (Pvt) Ltd
HC1786/12 for trial.
3.
The present matter is referred to trial on the basis of the Joint
Pre-Trial Conference Memorandum dated 4 June 2012”.
The
Joint Pre-Trial Conference Minute signed by the parties in HC316/12
on 4 June 2012 was endorsed by HUNGWE J on 24 October 2012. It was,
however, formally filed on 5 June 2012. There is therefore no doubt
that the memorandum referred to in KUDYA J's order is the one filed
on 5 June 2012. The said memorandum lists the issued for
determination in this trial as follows:
“1.1
Whether or not this Honourable Court has Jurisdiction to deal with
the plaintiff's claims.
1.2
Whether or not the plaintiff is collectively bound by the arbitration
award which was issued in November 2011.
1.3
Whether or not any rights accrue in favour of the plaintiff in terms
of his contract of employment.
1.4
Whether or not he schedule of the alleged sums due is an authentic
document reflecting defendant's indebtedness to the plaintiff.
1.5
Whether or not the failure to settle the plaintiff's salaries by
the defendant is attributed to supervening impossibility.
1.6
Whether the sum claimed or any sum is due to plaintiff by defendant.”
The
record shows that the award referred to in 1.2 above was actually
issued on 5 October 2011. The effect of consolidation is that the
above issues are the ones to be determined with respect to each of
the three plaintiffs in this matter.
The
determination herein shall follow the manner in which the parties'
legal practitioners have put forward their arguments with respect to
each plaintiff. Upon dealing with the preliminary issues, Counsel for
the parties then proceeded to argue the case of each plaintiff in the
following order:
(a)
Gerald Chiweshe - 1st Plaintiff.
(b)
Sameer Khan - 2nd Plaintiff.
(c)
Bruce Thomas - 3 rd Plaintiff.
I
shall therefore be guided by the same arrangement when dealing with
each plaintiff.
The
common factor in this case is that each one of the plaintiffs was at
one time employed by the defendant as a pilot, with the highest rank,
where applicable, being that of captain. The plaintiffs, prior, to
leaving the employ of the defendant, were each owed outstanding
salaries and allowances. They then, on the different dates indicated
against their names herebelow, issued summons for the amounts also
indicated against their names:
Name
of Plaintiff:
Date
Summons
Issued: Amount Claimed
1.
Gerald Chiweshe: 17 February 2012: US$56,511-76 (as amended
by consent on 22 July 2014)
2.
Sameer Khan: 13 January 2012: US$123,473-00 (as
amended by consent on 22 July 2014)
3.
Bruce Thomas: 13 January 2012: US$39,779-00 (as
recalculated during the course of the trial)
I
shall now proceed to deal with the preliminary issues raised by the
defendant.
(i)
The first issue raised is that this court has no jurisdiction on the
ground that the plaintiffs' issues are labour disputes which should
be handled by the Labour Court.
Notwithstanding
the fact that the first and second plaintiffs filed summons when they
were still employees of the defendant, it is accepted that they are
now ex-employees. The plaintiffs are now claiming outstanding
salaries from a former employer. Outside the employment arena which
is generally governed by the Labour Act, [Cap 28:01] (“the Act”),
this becomes a purely debt collection matter.
In
that situation, depending on the amount to be collected, the
plaintiffs are free to approach either the High Court or the
Magistrates Court.
I
therefore believe the plaintiffs in casu are already in the right
forum.
Although
specifically dealing with the definition of “employer”, in the
case of S v Stead 1991 (2) ZLR 54 (SC), the Supreme Court, in my
view, also defined the word employee. The Supreme Court in that case
stated:
“The
word 'employer' is defined in s2 of the Labour Relations Act 1985
to mean:
'… any
person who employs or provides work for another person and
remunerates him and includes the manager, agent or representative of
such person who is in charge or control of the work upon which such
other person is employed'.
It
is apparent that this definition presupposes the existence of
employment. It is aimed at a person, (whether an individual, a
company, an association, or the like), for whom employees work and
who pays their wages or salaries”.
The
above definition is in line with the current definitions of
“employee” and “employer” in the Act. Under s2 the
definitions are given as follows:
“'Employee'
means any person who performs work or services for another person for
remuneration or reward on such terms and conditions as agreed upon by
the parties or as provided for in this Act, and includes a person
performing work or services for another person -
(a)……….
(b)……….
'employer'
means any person whatsoever who employs or provides work for another
person and remunerates or expressly or tacitly undertakes to
remunerate him, and incudes -
(a)……..
control of the work upon which such other person is employed; and
(b)……..
(c)…….
(i)…………
(ii)………..
(d)……..”.
The
above definitions, in my view, relate to an existing
employee-employer relationship.
The
plaintiffs in casu are no longer performing work or services for the
defendant for which they continue to be rewarded. They are claiming
payment for services they rendered before terminating their contracts
and to strengthen their cases they have provided schedules from the
defendant where the existence of arrear salaries and allowances is
ackonwledged.
The
position of the plaintiffs is further fortified by the dicta in Eagle
Training (Pvt) Ltd and Anor v Employees of Eagle Training (Pvt) Ltd
and Anor (SC) 238/91, where it was said:
“The
reality of the matter is that the thirty-three employees had a civil
claim for the remaining 75% of their bonus against either Eagle or
Belmont Heather or against both in the alternative. They should have
made that claim in a civil court.” (My own underlining)
The
plaintiffs have civil claims and they have, in my view, correctly
apprached the civil division of the High Court for a remedy.
It
should also be noted that both the Constitution of the Republic of
Zimbabwe and the High Court Act [Cap 7:06] clothe this Court with
civil jurisdiction over the disputes that have been brought before it
by the plaintiffs. This is so because s171(1)(a) of the Constitution
states:
“The
High Court – has original jurisdiction over all civil and criminal
matters throughout Zimbabwe” (my own underlining); and
Section
13 of the High Court Act also provides as follows:
“Subject
to this Act and any other law, the High Court shall have full
original civil jurisdiction over all persons and over all matters
within Zimbabwe.” (my own underlining).
The
Labour Act, which in casu, is “any other law”, does not, as it
stands, expressly oust the jurisdiction that the law cited above
confers upon the High Court.
This
means the plaintiffs have a legal right to approach this court even
whilst still employed. Accordingly the first preliminary issue on
jurisdiction cannot be upheld.
(ii)
The next preliminary issue raised by the defendant is that the issues
before the court were determined through arbitration when it was
ruled that an agreement entered between the plaintiffs and the
defendant in 2003 was null and void.
However,
the plaintiff's take the point that their contracts of employment
were not subject to the said agreement of 2003 and that they were not
party to the arbitral award of 5 October 2011.
They
argue further that the arbitral award had nothing to do with the
payment of their arrear salaries and allowances.
Apart
from the arbitral award, the defendant did not place before the court
the 2003 agreement which it said was arbitrated upon. There was no
evidence to prove that the plaintiffs were parties to that agreement
and that their salaries were indeed governed by that agreement.
Each
of the plaintiffs' testified that they had individually negotiated
their own salaries upon which the salary arrears and allowances are
now claimed. It is accepted by the defendant that there were salary
arrears and allowances in respect of each plaintiff and that there
was never any specific arbitration relating to each plaintiff's
salary arrears and allowances.
In
short, the evidence before the court clearly distances the plaintiffs
from both the agreement of 2003 and the arbitral award of 5 October
2011.
It
is also important to note that the arbitral award quoted above is
based on the following terms of reference:
“(a)
To determine the appropriate salaries and allowances that must be
paid to the employees (respondent).
(b)
To determine whether or not it is proper for the employer (applicant)
to propose new contracts before fulfilling obligations of the
existing contract.
(c)
To determine appropriate remedy under the circumstances”.
The
above terms of reference, in my view, explain why the award makes no
reference to the validity of the unknown 2003 agreement.
Furthermore,
the operative part of the arbitral award that the defendant wants to
rely on, apart from having been granted after all the plaintiffs'
salaries were already in arrears, reads as follows:
“1.
That the application be and is hereby allowed.
2.
That the respondent continues getting the National Employment Council
bench marked basic salaries.
3.
That the applicant pays the respondent 45 per cent of the
internationally applied regime over and above respondent's
salaries.
4.
That the respondent receives allowances premised on productivity
based formulation whereby they are paid per hours flown.
5.
That the applicant shall meet all the arbitration costs”.
Clearly
the above award makes no reference to the so called 2003 agreement
that the respondent says was declared null and void.
Without
having seen the said 2003 agreement, it is near impossible to
establish a link between it and the plaintiffs' contracts of
employment.
The
fact that the Zimbabwe Flight Crew Association (the Association)
might have influenced the salaries of its members does not
necessarily make them a party to the individual employment contracts
between the defendant and the association's members or the
plaintiffs.
I
hold the view that a finding that the award has nothing to do with
the plaintiffs' contracts of employment entails that evidence given
by the defendant, mainly through Mrs Mutsinze, relating to the
arbitral award, should be totally ignored because it bears no
relevance to the plaintiffs' contracts of employment and their
claims.
In
view of the foregoing, I am also unable to uphold the second
preliminary issue (i.e res judicata) raised by the defendant.
Having
dismissed the two preliminary issues, I shall now turn to the merits
of the claims as they relate to each plaintiff.
As
already indicated, consolidation of the matters was due to the fact
that the issues affecting the plaintiffs are similar. This means
that, in general, findings made on one plaintiff apply to the other
two plaintiffs.
1.
Gerald Chiweshe (Chiweshe) – 1st Plaintiff
Gerald
Chiweshe (Chiweshe) gave evidence on his own behalf. He said he was
claiming US$56,511-76 (i.e as amended). This claim was in respect of
unpaid salaries and allowances due to him for the period February
2009 to July 2012.
Chiweshe
said he was first employed by the defendant as a pilot from 2003 to
2010 when he resigned to relocate in Canada. He said he had resigned
due to the failure by the defendant to regularly pay him his salary,
Chiweshe said he had later returned to the employ of the defendant
from the end of 2010 up to 31 March 2012. He said his monthly salary
as at 1 June 2011 was US$4002-76 and that the salary was still the
same when he left on 31 March 2012.
He
said he was never a member of the Association and had never paid any
subscriptions to it and therefore the Arbitral award had nothing to
do with his case.
In
support of his evidence Chiweshe tendered documents (exh 1) showing
his employment history and the arrear salaries and allowances he was
claiming. He said he had been given the schedule showing the total of
his outstanding salaries and allowances by the defendant's accounts
department.
2.
Sameer Khan – 2nd Plaintiff
Sameer
Khan (Khan) said he was employed as a pilot in the rank of Captain.
He was claiming his unpaid salaries and allowances for the period
February 2009 to July 2012. His claim was for a total sum of
US$123,473-00 (as amended).
He
said his salary arrears and allowances were confirmed in a schedule
bearing the defendant's official stamp. He produced the schedule as
exh 2. He also supported his record of employment by producing exh 2A
i.e employment contract, letter of resignation and letter from the
defendant accepting his resignation.
He
said his salary as at 1 January 2012 was US$7,058-00 per month and
US$7,804-00 per month as at 31 July 2012 when he left the employ of
the defendant.
He
admitted that he was a member of the Association but was not
personally named in the dispute between that association and the
defendant i.e the dispute that was referred to arbitration. He said
the arbitral award had no bearing on his claim.
3.
Bruce William Thomas – 3rd Plaintiff
Bruce
William Thomas (Thomas) testified that he was employed by the
defendant as a commercial pilot. To that end he tendered exh(s) 3 and
3A. He said his claim of US$39,779-00 relates to the period 1
February 2009 to 28 February 2010.
He
had obtained schedules from the defendant's accounts department
showing the total arrears of his salary and allowances. He, however,
said the amount in the schedule was not correct because:
(a)
It did not take into account an amount of US$830-00 which the
defendant had already paid him; and
(b)
The schedule incorrectly reflected that he had received an amount of
US$2,000-00 as an advance payment; and
(c)
A sum of US$22,000-00 had been paid to him but would not reduce his
current claim due to when it was paid. He said a reconciliation of
the figures therefore showed that the defendant still owed him
US$39,779-00. He said his monthly salary as at February 2010 was
US$7,239-00.
Thomas
said he was never a member of the Association and to that end he had
never paid any subscriptions and had never mandated the Association
to represent him in his employment affairs. His claim therefore had
nothing to do with the arbitral award.
The
defendant called two witnesses, namely Mrs Madziwana Nhira (Nhira),
the Salaries Administrator and Mrs Pamela Mutsinze, (Mutsinze) the
defendant's Acting Manager – Human Resources.
In
the main, the evidence of both witnesses was to give effect to the
already rejected issue of res judicata and to deny the authenticity
of the schedules relied upon by all plaintiffs.
I
formed the impression that these innocent ladies were brought in at
the last minute to reverse what the former Manager-Corporate Human
Resources, a Mr O. Madziwa (Madziwa) had actually authorised.
They
both confirmed Madziwa's status and even agreed that he had the
capacity to call for salary schedules from the Accounts Department.
Obviously he dealt with the schedules as he deemed fit in his
capacity as Manager Corporate Human Resources.
To
that end, it would be improper to allow the mentioned fall out
between Madziwa and the defendant to influence the outcome of this
case. He had official authority to act for the defendant.
In
the case of all the plaintiffs, Nhira's evidence was that she is
the one who issues salary schedules but they have to be signed by the
Human Resources Manager, the General Manager Finance and the
recipient. She said the stamping of schedules without the three
signatures did not make them official.
She
also went on to say that she had, in April 2011, issued signed salary
schedules to all the three plaintiffs. She said the plaintiffs were
also given monthly pay slips.
Unfortunately
the signed schedules and pay slips were not placed before the court.
As
to the first plaintiff's claim, Nhira said the defendant owed him
around US$3,000- 00. She agreed though, that the schedule attached to
Madziwa's letter of 29 December 2011 came from her and also that
the other schedules produced by the second and third plaintiffs were
similar to the one she prepared for Madziwa.
In
his letter to Chiweshe's legal practitioners, Messrs Kantor and
Immerman, dated 29 December 2011, Madziva wrote:
“This
is to certify that First Officer Gerald Chiweshe is employed by Air
Zimbabwe Holdings (Private) Limited, as a Pilot in the Passenger &
Cargo Division. His staff number is 27286. We write to confirm that
due to financial challenges, the Airline has not been able to pay
salaries as and when they fall due. As a result salaries for the
month of July to December 2011 have not been paid. Hence his deferred
salaries is USD28,493 as per the attached schedule. At this point in
time, we are hesitant to indicate by which date we would have paid
the outstanding salaries. Your patience and cooperation with him is
greatly appreciated as he is an honest and hardworking Pilot.
Yours
sincerely
For
and on behalf of AIR ZIMBABWE HOLDINGS (PVT) LIMITED
O.
Madziwa MANAGER – HUMAN RESOURCES”.
It
is important to note that the schedule attached to the above letter
was prepared after 5 October 2011 i.e the date of the Arbitral Award.
As
already indicated, similar schedules were attached to the claims
filed by the second and third plaintiffs.
It
was not denied that schedules contained information relating to the
period before and after the arbitral award. That shows that the
arbitral award had no impact on the plaintiffs' claims.
Notwithstanding
the fact that the Human Resources Manager, Madziwa, in his signed
letter to Chiweshe's legal practitioners, attached a schedule
confirming the outstanding salary arrears, Nhira urged the court to
reject the schedule because it was not signed by three people.
However,
as already stated, she was not able to place before the court either
copies of the signed schedules that she gave to the plaintiffs or pay
slips.
I
do not believe that, the defendant, given its standing in society,
would take the issue of record keeping lightly as demonstrated by its
failure to avail the court with what it claimed were authentic
records in its custody. In view of the problems regarding non-payment
of salaries and allowances the need for such records was paramount.
Under
cross examination, she admitted that she at times issued unsigned
schedules. She, however, tried to put a rider by saying she only gave
the unsigned schedules to Management. She did not disclose how many
schedules, in addition to the one she gave to Madziwa, she also
dished out to other members of management who might have needed them.
Nhira
said she was not able to dispute Chiweshe's salary of US$4,002-67
as at the time of his departure from the employ of the defendant. She
also agreed that everything relating to the plaintiffs would have
been placed on record including pay slips.
I
also did not hear her challenge the monthly salaries of the other
plaintiffs (i.e Khan US$7,804-00 per month and Thomas US$7,239-00 per
month).
Sadly,
at the end of the day what we have in casu is a situation where the
defendant accepts that the plaintiffs' are owed arrear salaries and
allowances but simply refuses to pay or declare what those salaries
and allowances are. This is despite the fact that the defendant is
the custodian of the requisite records.
Given
that situation, the court can only rely on the schedules produced by
the plaintiffs.
Those
schedules, it is my finding, emanated from officers of the defendant.
The defendant did not produce counter schedules which it claimed to
have given to the plaintiffs (i.e in the form of reconciled schedules
and pay slips).
Accordingly
in the absence of any such pay slips or reconciled schedules from the
defendant, it is difficult to reject the plaintiffs' evidence.
It
was not denied that the plaintiffs rendered services to the defendant
as particularised in their claims. The defendant has a legal
obligation to pay for their services.
There
was also no evidence of any supervening impossibility which could
have led to the defendant's failure to pay the plaintiffs their
salaries and allowances.
The
plaintiffs have, therefore, on a balance of probabilities, proved
their claims. I therefore order as follows:
1.
The defendant be and is hereby ordered to pay the first plaintiff
(Gerald Chiweshe) the sum of US$56,511-76 (Fifty six thousand Five
hundred and Eleven United States Dollars and Seventy Six Cents) with
interest at the prescribed rate from 1 March 2009 to date of payment
in full;
2.
The defendant be and is hereby ordered to pay the second plaintiff
(Sameer Khan) the sum of US$123,473-00 (One Hundred and Twenty Three
Thousand Four Hundred and Seventy Three United States Dollars) with
interest at the prescribed rate from 1 March 2009 to date of payment
in full;
3.
The defendant be and is hereby ordered to pay the third plaintiff
(Bruce Thomas) the sum of US$39,779-00 (Thirty Nine Thousand Seven
Hundred and Seventy Nine United States Dollars) with interest at the
prescribed rate from 1 March 2009 to the date of payment in full; and
4.
The defendant be and is hereby ordered to pay the total costs of suit
incurred by all the plaintiffs.
Coglan
Welsh & Guest, plaintiffs' legal practitioners
Mutumbwa
Mugabe & Partners, defendant's legal practitioners
