MAKONI
JA:
On
26 January 2017, this Court in SC1/17, adjudicating over the parties'
dispute, remitted the matter to the Labour Court (the court a
quo)
for a determination of the following issues:
“To
determine, on the basis of specific provisions of the Works Council
Agreement concluded in September 2010 and the minutes accompanying
the Agreement, and having regard to sworn evidence from the
signatories to the agreement, whether or not the salaries and
benefits stipulated in that agreement were intended to apply to the
appellants.”
After
considering the parties' submissions and evidence led, the
court a
quo
dismissed the appellants' claim against the respondent. The court a
quo
held that the appellants failed to discharge the onus on them of
proving that they were covered by the Works Council Agreement upon
which their claim of salaries and benefits was founded.
This
is an appeal against that judgment.
FACTUAL
BACKGROUND
The
appellants are 153 former employees of the respondent who were
employed as security guards on fixed-term contracts renewable every
three months.
The
period of employment ranged from 2007 and 2008 up until January and
April 2011 when their contracts expired by effluxion of time and were
not renewed.
In
July 2010, the respondent, 1078 of its employees and its workers'
committee approached an arbitrator (Nasho) in a bid to negotiate the
regularisation of the employees' contracts in line with the new
multi-currency regime and to ascertain the salary arrears due to the
respondent's employees.
Arbitrator
Nasho ordered the payment of back-pay from 1 March 2009 to the date
of the award, in line with the multi-currency system.
In
accordance with that award, the parties concluded a Works Council
Agreement, on 15 September 2010, which set the back pay due to all
employees of the respondent and the salary structure for
non-managerial employees from 1 January 2010 onwards. It was agreed
that all employees across the board, for the period of 1 March 2009
to 31 December 2009, were to be paid a net salary of $500 per month.
Following
this agreement, and in a different matter, the appellants challenged
the termination of their employment on the basis that their contracts
had become permanent upon repeated renewal. A second arbitrator,
(Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.
On appeal, the arbitral award was upheld by the Labour Court.
On
10 December 2012, following the dismissal of their claim by
arbitrator Mugumisi and as confirmed by the Labour Court, the
appellants filed another claim for the payment of arrear salaries and
benefits which was dealt with by the third arbitrator (Mambara) who
awarded the payment of arrear salary and benefits, in accordance with
the 2010 Works Council Agreement, from 1 January 2010 to the date
when each claimants' contract of employment was terminated.
Dissatisfied
by that decision, the respondent applied to the Labour Court for a
review of the award. The Labour Court upheld the review on 12
September 2014 and dismissed the appellants' claim.
Irked
by that decision, the appellants appealed to this Court which
remitted the matter to the court a
quo
for a comprehensive analysis of whether the appellants were covered
by the 2010 Works Council Agreement.
In
making that order, the court noted that although both the arbitrator
and the Labour Court, in its review proceedings, referred to the
minutes and the agreement of September 2010, the relevant portions of
the agreement were not reproduced.
Additionally,
the court reflected that the Labour Court, failed to call evidence
from the signatories to the agreement to explain its provisions and
clarify its scope of coverage.
It
further did not proceed to consider the precise ambit of the
agreement and its implications for the appellants' claim before the
arbitrator.
As
a result it did not make a finding on this critical aspect of the
matter despite noting some causal nexus between the Nasho award and
the 2010 Agreement.
The
court further reasoned that it appeared common cause that the present
appellants were part of the 1078 claimants who were beneficiaries to
the Nasho award and that since the Works Council Agreement was made
in September 2010, they would have a justifiable claim to the
benefits accruing from that agreement. The court concluded as
follows:
“In
the circumstances, it seems just and equitable that this matter be
remitted to the court a
quo
to clearly determine whether or not the scope of the 2010 Agreement
extended to all of the respondent's employees, including the
appellants in
casu.
This will not only serve to ensure that justice is attained but also
to secure finality to the protracted and costly litigation between
the parties.”
Hence
the proceedings in the court a
quo
which are the subject of this appeal.
PROCEEDINGS
IN THE COURT A
QUO
The
remittal proceedings commenced with the appellants' statement of
claim, to which the affidavit of Joseph Lungu, the first appellant
was attached.
Mr
Lungu averred that the appellants were part of the 1078 workers in
whose favour the arbitral award by Nasho was made. In support of this
position, Mr Lungu relied on a list attached to a memorandum which
was addressed to one Mr Rwatirera on 5 September 2012.
The
respondent's notice of opposition was supported by affidavits from
different personnel in the respondent's employ.
The
first deponent was Mr Rwatirera, a member of the respondent's Works
Council that negotiated the September 2010 Works Council Agreement.
He
averred that there was no list of the claimants who appeared before
Arbitrator Nasho as none was furnished or attached to those arbitral
proceedings. As such, he argued that the list produced by the
appellants was tailor-made for the proceedings. He thus, denied
approving or signing the list produced by the appellants.
Mr
Rwatirera further indicated that the employees who were covered by
the 2010 Agreement were permanent non-managerial employees and not
fixed-term contract employees since the latter's terms and
conditions were regulated by their individual contracts of employment
and were not subject to any Work's Council negotiations nor
Worker's Committee representation.
He
also averred that it was generally accepted by the respondent, the
then Worker's Committee representatives, the general body of the
respondent's permanent employees and most of the fixed-term
contract employees that fixed-term contract employees were not within
the scope of the arbitral proceedings before Nasho and the subsequent
Agreement of 2010.
He
also asked the court to note that the appellants signed fixed term
contracts of employment providing for a salary of $250.00 per month
well after the September 2010 Agreement was concluded.
The
second deponent, Mr Mugabe, the chairman of the Workers Committee and
a member of the Works Council in September 2010, attested that the
salaries and benefits of the Work's Council Agreement were intended
to apply to permanent employees in grades 1 to level 2 and not to
fixed-term contract employees.
The
third deponent, E Makaha, a former vice-chairman of the Worker's
Committee and a member of the Works Council confirmed Mr Mugabe's
averments.
The
fourth deponent was Mr Mavengano, the former Vice Secretary of the
Worker's Committee and a member of the Works Council who authored
the list dated 12 September 2012.
He
disputed the authenticity of the list produced by the appellants.
The
fifth and sixth deponents, A.
Saburi
and T. Hungwe, respectively, who were management representatives in
the Works Council Agreement, averred that the Worker's Committee
did not, at any time, represent fixed-term contract employees in
negotiating their salaries and benefits.
In
response, the first appellant disputed the respondent's averments
in their totality.
At
the hearing, the respondent took a point in
limine
that the founding affidavit of Mr Lungu, was improperly before the
court as he was not a signatory to the Works Council Agreement of
2010 as required by the remittal order.
To
the contrary, counsel for the appellants argued, that the order in
SC1/17, which remitted the matter to the court a
quo,
was not restrictive, but left it open for the court to receive any
other sworn evidence apart from that of signatories to the Works
Council Agreement.
The
court a
quo
upheld the preliminary objection and expunged the affidavit of the
first appellant from the record.
Thereafter,
two witnesses testified for the appellants.
The
first witness, Mr Muronzi, averred that the applicants participated
in the proceedings before arbitrator Nasho and contributed $2 towards
arbitration costs. However, he stated that he was not a member of the
Workers Committee and was not a signatory to the September 2010
Agreement and was cognisant of patent irregularities on the
appellants' list.
The
second witness, Mr Mushayabasa averred that he was on a specific term
contract and was one of the employees who contributed $2 for
arbitration costs before Arbitrator Nasho, following an address by
one Ziki, a member of the then Worker's Committee.
The
respondent led evidence through Mr Rwatirera who, apart from
reiterating the averments in his founding affidavit, testified that
it had always been the respondent's practice that fixed-term
employees were excluded from the Works Council.
Work's
Council members were voted into office by permanent members of staff
only.
He
also testified that the Workers Committee only represented permanent
members of staff.
He
further confirmed the fact that the applicants signed further
contracts of employment, with a different salary from that of
permanent employees, long after September 2010 Works Council
Agreement was concluded.
He
reiterated that all the employees on fixed term contracts were not
part of the Nasho proceedings.
DETERMINATION
OF THE COURT A
QUO
The
court a
quo
dealt
with the issue of whether or not the appellants had discharged the
onus
on them of proving that they were included in the September 2010
Works Council Agreement.
The
court had regard to the specific provisions of the September 2010
Works Council Agreement, the minutes accompanying that Agreement and
sworn evidence from the signatories to the Agreement.
The
relevant clause on which the appellants base their claim provides as
follows:
“The
Works Council resolved to recommend to the board that;
(i)
A net salary of $500 per month be paid to
all employees
across the board for the period 01 March 2009 to 31 December 2009.
(This is inclusive of transport allowance of $50 per month and rental
support of $200 per month.)
(ii)
A thirteenth cheque should be paid to
all employees
for the same period.” (emphasis added)
Regarding
the September 2010 Works
Council Agreement,
the court a
quo
found that the reference to “all employees” in the agreement was
not determinative of whether or not the applicants were entitled to
the salaries and benefits stipulated under that agreement. This was
because the respondent had several employees ranging from fixed-term,
permanent term to those contracted for casual work or seasonal work.
Accordingly,
it posited that the use of the term “all employees” was vague and
it was unable to decide which of the meanings applied by both parties
was correct.
The
court then
held
that the provisions of the September
2010
works council agreement did not assist the appellants to discharge
their onus.
Concerning
the minutes accompanying the Agreement, the court a
quo
found
that they were no different from the Works Council Resolutions in
that there was no indication whether or not the mentioned employees
were on fixed-term or permanent employment.
Accordingly,
it was unable to decide whether the appellants were included in the
term 'employees' as it appeared in the minutes. Therefore, the
court ruled that the minutes of the Works Council meeting did not
assist the appellants to discharge the onus
on them.
As
regards the sworn evidence from the signatories to the Agreement, the
court noted that the two witnesses who testified for the appellants
were not signatories to the agreement or members of the Works
Council.
It
proceeded to disregard their evidence for non-compliance with clause
3.1 of the order for remittal.
The
court a
quo
further found that in any event, the evidence before it was that of
sworn affidavits of members of the Works Council who were present
when the agreement was reached stating that the appellants were not
covered by the agreement.
Further,
the authenticity of the list of names relied upon by the appellants
was put in issue.
After
analysing the list tendered by the appellants, the court remarked
that on a balance of probabilities, the appellant's names were
interposed on an existing list. It opined that the list on which the
appellant's names appeared might have been a combination of
documents that were prepared for different purposes.
In
the result, it held that the document could not be taken as proof of
the people who were involved in the arbitration proceedings before
Arbitrator Nasho.
The
court concluded that the appellants had not been able to discharge
the onus
of proving that the salaries and benefits stipulated in the September
2010 Works Council Agreement were intended to apply to them.
It
then dismissed the appellants' claim with costs.
This
decision prompted the appellants to note the present appeal on the
following grounds:
“1.
The court a
quo
erred in coming to the conclusion that the founding affidavit of
Joseph Lungu was not properly before it and accordingly striking if
off and in consigning the viva voce evidence given on behalf of the
appellants to the same fate.
2.
A fortiori, the court a
quo
erred in renouncing the essence of the responsibility that had been
placed upon its shoulders by the Supreme Court.
3.
The court a
quo
seriously misdirected itself such misdirection amounting to an error
in law in not requiring respondent to account for the 1079 claimants
who were before Arbitrator Nasho and in not requiring it to show how
it could be said the appellants were not part of those claimants, all
the circumstances of the matter (sic).
4.
Having found that the agreement on which appellants sued and the
minutes giving birth to it related and made reference to 'all
employees', the court a
quo
erred in coming to the conclusion that such reference was not
determinative of the issue and that it still left room for the
conclusion that the appellants were not contemplated by the words
'all employees'.
5.
The court a
quo
erred in not coming to the conclusion that though appellants could
not lead the evidence of the signatories to the agreement and that
for reasons that were beyond them, all the objective evidence which
the Supreme Court had related to and directed be taken into account
led to the inexorable conclusion that appellants were covered by the
agreement.
6.
The court a
quo
erred in not coming to the conclusion that appellants were on the
list of employees which formed part of the Supreme Court record and
which respondent had dishonestly tried to amend after the fact that
there had accordingly never been a dispute as to their inclusion in
the agreement.
7.
The court a
quo
seriously misdirected itself, such misdirection amounting to an error
in law in not concluding that the discrepancies on the numbers of the
employees appearing on the lists were explicable on the basis that
some of the employees who had made their contributions had not
appeared in the Nasho list.”
SUBMISSIONS
BEFORE THIS COURT
Mr
Mpofu,
for the appellants, argued that the court a
quo
misdirected itself in ignoring the fact that the only list that
contained the names of the 1079 employees that were covered by the
September 2010 Works Council Agreement was the list provided by the
appellants.
He
submitted that the failure by the respondent to produce the original
list of 1079 employees, covered by that Agreement that it relied on,
but instead attaching a list with 237 employees indicated that the
only list of employees that could be relied on was that produced by
the appellants.
He
further submitted that since the respondent had not disputed the
authenticity of the list of 1079 employees produced by the appellants
in this Court when the matter initially came on appeal, it could not
seek to do so during remittal proceedings.
Mr
Mpofu
also argued that the phrase “all employees” as used in the
resolution of the Works Council Meeting and the Minutes that followed
was unambiguous and applied to all the respondent's employees
without discrimination.
This,
he submitted, was supported by the fact that during the dollarisation
period, all the respondent's employees were getting allowances
instead of salaries and the object of the arbitration proceedings,
held before Arbitrator Nasho, was to discuss the regularisation of
all employees' contracts of employment regardless of whether they
were permanent or on fixed term contracts.
As
such, he contended that there was no justifiable basis upon which the
respondent could exclude the appellants.
Further,
that regard being had to s5 of the Labour Court Act [Chapter
28:01],
which provides for the protection of employees against
discrimination, there was no justification in distinguishing the
salary payable to fixed term employees and permanent term employees
in the regularisation process.
Mr
Mpofu
also submitted that the court a
quo
erred in taking a rigid approach in resolving the matter leading it
to irregularly striking out part of the appellants' evidence. He
submitted that the fact that the evidence was unnecessary does not
mean that the appellants did not have a valid claim.
He
also submitted that the court a
quo
should not have found that the list of 1079 employees produced by the
appellants was doctored in the absence of expert evidence to that
effect.
He
also submitted that the Works council minutes refer to “all
employees”.
There
was no application to rectify the minutes and it leads to one
conclusion that they applied to all employees.
He
further contended that there was uncontroverted evidence that the
appellants contributed money towards the costs of the arbitration.
Conversely,
Mr
Magwaliba,
for the respondent, submitted that the court a
quo
could not be faulted in finding that the appellants had failed to
discharge the onus
upon them of proving that they were included as beneficiaries in
terms of the September 2010 Works Council Agreement.
He
contended that the onus
was on the appellants to prove that they were covered by the
Agreement.
He
submitted that the court a
quo
was correct in restricting itself to the parameters set by this Court
when it remitted the matter, hence, part of the appellants'
evidence was struck out.
It
was also his argument that the court a
quo
had made a factual finding that the list of employees provided by the
appellants had patent irregularities and that such factual finding
could not be upset by this Court unless the appellants established
that such a finding was grossly unreasonable.
Furthermore,
he submitted that the court a
quo
having
found that the text used in the Works Council Meeting and the
subsequent Minutes did not help the appellants' case, correctly
determined that no evidence had been put before it by the appellants
to prove that they were part of the 1079 employees who appeared
before Arbitrator Nasho.
ISSUE
FOR DETERMINATION
Although
the appellants have raised several grounds of appeal, I take the view
that the appeal can be determined on the following issue:
WHETHER
THE COURT A
QUO
ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE
APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER
2010
In
determining this issue, it is necessary to first consider the import
of the order in SC1/17 remitting the matter to the court a
quo.
That
order enjoined the court a
quo
to determine whether
or not the salaries and benefits stipulated in the September 2010
Works Council Agreement of 2010 were intended to apply to the
appellants and if so, the quantum thereof. Put differently, the court
a
quo
had to determine if the appellants were included in that Agreement.
An
examination of the court a
quo's
ruling reflects that the court a
quo
did not make this finding. Having considered the specific provisions
of the September 2010 Works Council Agreement and the Minutes
accompanying the Agreement as directed by this Court under SC 1/17,
the court a
quo
remarked that it was unable to decide whether or not the appellants
were included under the agreement.
The
court a
quo
then invoked the principle of onus
to the effect that the appellants failed to prove that they were
covered by the 2010 agreement.
The
court a
quo's
decision was premised on the inability to resolve the issues in
dispute.
I
regurgitate the relevant portions of the court a
quo's
judgment:
“(1)
The
Specific provisions of the Works Council Agreement of September 2010
In
our view the text of the Works Council meeting Resolutions of
September 2010 does not resolve the issue.
The
use of 'all employees' leaves the Court unable to decide which of
the two meanings propounded by the parties is correct.
It
therefore follows that provisions of the Works Council Agreement of
2010 does not help the Applicants to discharge the onus upon them.
(2)
The
Minutes Accompanying the Agreement
The
minutes of the Works Council meeting of 16 September 2010 leaves the
court in the same position as after considering the Works Council
Resolutions of September 2010.
The
Court is unable to decide whether the Applicants were included in the
term employees as it appears in the minutes.
The
minutes of the Works Council meeting of 16 September 2010 therefore
do not assist the Applicants to discharge the onus upon them”
(emphasis added)
It
follows that the court a
quo
failed to make a determination on the pertinent issue upon which the
matter was remitted.
The
court a
quo's
inability to make a finding is a serious misdirection. It is
tantamount to not making a decision at all.
In
PG
Industries (Zimbabwe) Limited v Bvekerwa & Ors
SC53/16 at pages 7-8, the court opined on the effect of a court's
failure to determine an issue in dispute as follows:
“The
position is settled that where
there is a dispute on a question, be it on a question of fact or
point of law, there must be a judicial decision on the issue in
dispute. The failure to resolve the dispute vitiates the order given
at the end of the proceedings.
Although
the learned judge may have considered the question as to whether or
not there was an irregularity in the citation of the employer, there
was no determination on that issue. In the circumstances, this
amounts to an omission to consider and give reasons, which is a gross
irregularity.”(Emphasis added)
In
casu,
the court a
quo
whilst accepting the parties' dispute regarding the import of the
September 2010 Works Council Agreement and the minutes thereto, did
not make a finding on whether in light of this evidence, the
appellants were included in the September 2010 Agreement.
The
court could not have failed to determine this crucial issue as the
relevant facts upon which it could reach an objective decision were
before it.
The
irregularity is apparent in the court a
quo's
assessment of the
specific
provisions of the September 2010 Works Council Agreement and the
minutes accompanying that Agreement.
The
finding by the court a
quo
that the appellants failed to discharge the onus
placed on them to prove that they were covered by the 2010 agreement
did not dispose of the matter. This is so because the question
remained whether or not the appellants were covered by the agreement
regard being had to the evidence placed before the court a
quo.
This
was not an issue the court a
quo
could ignore. The court was obliged to making a finding.
It
failed to do so.
Having
found that the court a
quo
grossly misdirected itself in failing to make a clear cut
determination, the pertinent question that arises is whether the
subsequent finding by the court that the appellants failed
to discharge the onus
cast
upon them, to prove that they were covered by the September 2010
which Agreement, was correct.
In
Pillay
v Krishna & Another
1946 AD 946 at 952-953, the court made the following remarks
regarding the burden of proof in a matter:
“...
the
duty which is cast on the particular litigant, in order to be
successful of finally satisfying the Court that he is entitled to
succeed on his claim, or defence, as the case may be,
and not in the sense merely of his duty to adduce evidence to combat
a prima facie case made by his opponent.
The
second is that, where there are several and distinct issues, for
instance a claim and a special defence, then there are several and
distinct burdens of proof, which have nothing to do with each other,
save of course that the second will not arise until the first has
been discharged.
The
third point is that the onus, in the sense in which I use the word,
can never shift from the party upon whom it originally rested.
It
may have been completely discharged once and for all, not by any
evidence which he has led, but by some admission made by his opponent
on the pleadings (or even during the course of the case) so that he
can never be asked to do anything more in regard thereto; but the
onus which then rests upon his opponent is not one which has been
transferred to him: it is an entirely different onus, namely the onus
of establishing any special defence which he may have.” (Emphasis
added)
From
these remarks, one can note that the burden of proof is the
obligation upon a litigant to establish facts which persuade the
court to rule in his or her favour.
It
invariably involves a court's weighing of an applicant's claim
together with the probabilities which arise from the circumstances of
the case to decide whether he is entitled to the relief sought.
Therefore
the question of whether or not a party has discharged the onus upon
it cannot be determined by a court's indecision. This is
particularly so in an instance where the court can evaluate the facts
and evidence and decide which version is more likely than not to be
true.
It
is on this basis that I have concluded that the court a
quo
did not correctly apply the principle of onus of proof to the matter
before it.
Mr
Mpofu
urged the court to consider that on a holistic approach to the matter
there was sufficient material for this court to make a finding that
the appellants were part of the September 2020 Works Council
Agreement.
That
would be tantamount to asking this Court to be a court of first and
last instance.
This
Court cannot do so for the reason that the
general position of law is that for the Supreme Court to consider a
case, a lower court or tribunal must have made a relevant order. Its
duty is to determine
whether those decisions should be confirmed, changed or reversed.
This
is because the Supreme Court exercises appellate jurisdiction which
is conferred on it by ss9 & 21 of the Supreme Court Act [Chapter
7:13]
and s169 of the Constitution of Zimbabwe, 2013.
The
undesirability of having an appellate court sitting as a court of
first instance was put across in Dormehl
v Minister of Justice and Others
[2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues
of direct access to the Constitutional Court of South Africa stated:
“(b)
It is not ordinarily in the interests of justice for a court to sit
as a court of first and last instance, without there being any
possibility of an appeal against its decisions…”
In
any event there is need for the leading of evidence which the court a
quo
is best suited to do as is provided in terms of ss89(2)(a)(i) &
89(5) of the Labour Act [Chapter
28:01].
DISPOSITION
The
court a
quo's
failure to determine whether, in terms of the specific provisions of
the September 2010 Works Council Agreement and the Minutes
accompanying the Agreement, the appellants were entitled to the
benefits therein, constitutes a
material misdirection justifying interference by
this court.
It
is also a matter which the court a
quo
is
in as good a position to address, thus, a remittal is appropriate in
the circumstances.
The
matter would be remitted to be heard before a single judge who shall
not be any of the judges who determined the matter previously.
In
the result the appeal succeeds in respect of ground 2 and is
dismissed in respect of the rest of the grounds. It would be fair in
the circumstances of this case that each party bears its own costs.
It
is accordingly ordered as follows:
(1)
The appeal be and is hereby allowed.
(2)
The judgment of the court a
quo
be and is hereby set aside.
(3)
The matter be and is hereby remitted to the court a
quo,
before
a different Judge, for a proper determination of whether
on the basis of specific provisions of the Works Council Agreement
concluded in September 2010 and the minutes accompanying the
Agreement, the salaries and benefits stipulated in that agreement
were intended to apply to the appellants.
(4)
If the answer is in the affirmative, to quantify the salary and
benefits due to each appellant in terms of the Agreement, from 1
March 2009 to the respective date of termination of each appellant's
contract of employment, subject to the deduction of such payments as
each appellant may have received by way of salary and benefits during
the relevant period.
(5)
Each party shall bear its own costs.
GUVAVA
JA: I
agree
MAVANGIRA
JA: I
agree
T.
H. Chitapi & Associates,
appellant's legal practitioners
Messrs
Muringi Kamdefwere,
respondent's legal practitioners
