Verukai Emilton N/O v TM Supermarket (Pvt) Ltd and Itai Nkomo and Thembinkosi Nyathi LC/MT/37/18

“I  feel compelled  to  respectfully state  that  Act  5 of 2015 was a knee jerk reaction to the aftermath of  the  Zuva judgment and so not much thought was put into the  drafting of  the amendment resulting in poor  draftsmanship which  has  caused  interpretation nightmares  to litigants, Labour  Court judges  and legal practitioners alike.”

Introduction

I find the principles of law discussed in this case interesting. This matter pertained to an application for confirmation of a draft ruling in terms of section 93 of the Labour Act as amended in 2015.  The case explores various claims put forward by two ex-employees. Issues to do with overtime, shares emanating from an ownership scheme and compensation for loss of employment were subject of contention in this case. The reasons put forward by the court in coming up with the final judgment are exciting and will be summarised in this instance.

Background

The brief facts of the matter are that the employees were dismissed in December 2016 after breaching company rules. They then decided to put forward various claims before the Ministry of Labour, Labour Officer. As mentioned above, these claims entailed overtime payment, a claim for shares as well as compensation for loss of employment in terms of the amended provisions of the Labour Act. The Labour Officer to whom the dispute was referred decided in favour of the former employees. It was this draft ruling that the labour officer sought to have confirmed by the Labour Court.

Reasons for the judgment

For ease of reference, I will breakdown the reasons for the judgment under small headings inline with the matters before the court.

Overtime claim

The court did not support the claim for overtime. For starters, it found that the employees did not produce evidence for the claim. It reinforced the rule that the one who claims should provide the proof of the claim. The court further made a finding that the biometric system that the employer used was reliable and that its results had always been used to pay the employees overtime or to give them time off in lieu of overtime. The fact that the employees failed to adduce evidence supporting their overtime, therefore, meant that there was no supportable claim. The court also supported the company’s argument that the overtime ought to have been authorized before being existent. Failure to provide such proof proved disastrous for the employees.

In addition to the above, the court made a finding that the Labour Officer failed to show the basis for the computations he had inserted in the draft ruling. The Labour Officer went on to admit that he had erred in as far as the computations were concerned. It was for these reasons that the court could not support the claim put forward and had no option other than not to confirm this part of the draft ruling.

Shares

The employees were contributing to a share ownership scheme in line with the country’s indigenization policy. The money for this scheme was deducted from the employee’s salaries and remitted to this scheme. The employee’s contention was in connection with a payout that had been made. They argued that because the employer was the one deducting these monies the employer ought to compensate them.

The court did not support the employee’s argument. It noted that the administration of the scheme was in the hands of trustees. These are the persons the employees ought to have confronted if they had an issue with the payout which had been made. It pointed out that the employer would only come into the picture if the deducted amounts had not been remitted to the scheme.

The court failed to support this claim.

Compensation for loss of employment

The employee sought to claim compensation in terms of section 12(4a) which came as a result of the 2015 amendment. The court had a problem with the argument that the employees having been dismissed were entitled to compensation for loss of employment. It realized that that section 12 (4a) applied to instances were an employee lost his employment as a result of termination through giving notice. It argued that the employees in casu had been dismissed. Such a dismissal was in terms of section 12B and as a result, section 12 (4a) could not apply.

The court decisively reasoned as follows:

“A dismissal letter is just that, it can never be equated to notice given where termination is on notice. To suggest so would be tantamount to saying once disciplinary proceedings have ended and the employee is found guilty and the penalty of dismissal is meted out,  the employer then serves the employee with a notice, informing them of the decision but giving them notice that such dismissal will take place on some future date”.

As a result of the above findings, the court concluded that the employees were not entitled to the compensation for loss of employment. It thus also failed to confirm this part of the draft ruling.

Court Decision

The court failed to confirm the whole draft ruling.

Own comment

The courts reasoning is this case is much-admired. The issue of compensation for loss of employment was well reasoned. There is no reason why an employee who has been dismissed should be compensated. Such an employee would have breached company rules for starters. Why then should someone be compensated for going against company rules?

Further, the judgment is also commended for upholding the need for employers to approve and authorize overtime before its worked and paid. This avoids a situation where an employee deliberately prolongs work at the expense of the employer. It also did not support instances were labor officers insert figures in their awards without any legal basis.

1,222 Views

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!