Court name
Supreme Court of Zimbabwe
Case number
SC 115 of 2002
Civil Appeal 55 of 2001

Bata Shoe Company v Pongweni and Another (55/01) (SC 115 of 2002, Civil Appeal 55 of 2001) [2003] ZWSC 115 (20 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 115










DISTRIBUTABLE
(94)


Judgment
No. SC 115/02


Civil
Appeal No. 55/01








BATA
SHOE COMPANY LIMITED v





(1)
MACDONALD PONGWENI (2) AUGUSTINE MACHANGU








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


BULAWAYO,
NOVEMBER 25, 2002 & JANUARY 20, 2003








R
M Fitches
,
for the appellant





The
respondents in person






SANDURA  JA:
This is an appeal against a judgment of the Labour Relations
Tribunal (“the Tribunal”) which,
inter
alia
,
ordered the appellant (“Bata”) to refund the sum of $47 563.34
to the first respondent (“Pongweni”), and the sum of
$31 416.53
to the second respondent (“Machangu”).





The
background facts are as follows. At the relevant time Bata, a
company whose business was, and still is, the manufacture and
sale of
shoes, employed Pongweni and Machangu as managers of two of its
retail outlets in Bulawayo. It was Bata’s policy to deduct
from
the salary payable to the manager of its retail outlet the value of
the shoes stolen at that outlet, whether or not the manager
was at
fault.





In
accordance with that policy, various amounts were deducted from the
salaries payable to Pongweni and Machangu without their consent.

However, both Pongweni and Machangu added that as an alternative to
such deductions they were at times required by the district
sales
manager (“Shumba”) to pay, and did pay, to Bata the value of the
stolen shoes.






Consequently, shortly after the
termination of their employment contracts, the two men approached a
labour relations officer and lodged
a complaint against Bata about
their salary deductions. After conducting a hearing, the labour
relations officer issued a determination
on 20 September 1995
ordering Bata to refund to Pongweni and Machangu all the amounts
deducted from their salaries in respect
of the stolen shoes, but the
amounts refundable were not quantified.





That
determination was subsequently upheld by a senior labour relations
officer on 4 March 1996. Thereafter, an appeal to the
Tribunal
by Bata was dismissed with costs on 5 October 1999, and no
appeal was noted against that decision.





Subsequently,
when the parties could not agree on the amounts refundable, Pongweni
and Machangu approached the Tribunal which, on
31 January 2001,
after conducting a full hearing, ordered Bata to refund the sum of
$47 563.34 to Pongweni and the sum
of $31 416.53 to
Machangu. In addition, the Tribunal ordered Bata to pay both men
their unpaid salaries and terminal benefits.
Aggrieved by the
Tribunal’s order, Bata appealed to this Court.





Before
dealing with the issues raised in this appeal, I wish to stress that
the appeal concerns the quantum of the amounts payable
to the
respondents. It does not concern the issue as to whether Bata had
the right to make the respondents pay to it the value
of the stolen
shoes. That issue was determined in favour of the respondents by
the labour relations officer who, in September 1995,
ruled that Bata
did not have such a right. That determination was subsequently
upheld by the senior labour relations officer in
March 1996, and by
the Tribunal in October 1999. As already stated, no appeal was ever
noted by Bata against the order issued by
the Tribunal in October
1999.






Having said
that, I wish to consider the merits of the appeal. However, before
the appeal was heard, Mr 
Fitches,
who appeared for Bata, obviously appreciating that the notice of
appeal did not raise any question of law, applied for leave to
amend
the appellant’s grounds of appeal by adding the following:





“1. In
giving a determination that amounted to or related to unjust
enrichment, the Tribunal erred in law in that it entertained matter
beyond the ambit of its statutory jurisdiction.






2. As it was common cause that
the respondents had consented contractually to the deductions, the
Tribunal erred in law in its determination,
as there was no basis in
law upon which to order reimbursement.





3. That
as the respondents had resigned there was no basis upon which the
Tribunal could entertain their claims.”






The
application was not opposed by the respondents and was, accordingly,
granted.





The
first ground was based on what the Tribunal said in its judgment
after hearing the application for the quantification of the
amounts
refundable to the respondents. It said the following:





“The
order required the respondent (Bata) to reimburse all the monies
deducted for stolen shoes. It, however, turned out during the
proceedings that there were times when the applicants (Pongweni and
Machangu) were ordered to pay cash from their own pockets for
half
pairs stolen in circumstances where they were not to blame for the
thefts. The order clearly intended to reimburse the applicants
(Pongweni and Machangu) for any losses they suffered in that respect.
The word ‘deducted’ should be given a wider meaning to
avoid
the respondent (Bata) being unjustly enriched at the expense of the
applicants (Pongweni and Machangu).”





That
statement was made in the light of the evidence given by Pongweni and
Machangu that when they appeared before the labour relations
officer
and claimed the refund of the amounts deducted from their salaries,
they did not distinguish between deductions from their
salaries and
payments in cash which they had made to Bata out of their own pockets
on Shumba’s instructions, to cover up the shortfall
in the proceeds
from the sale of shoes caused by theft of shoes at the retail outlets
which they managed. They said that when the
shortfall was small,
the amount was deducted from the salary of the manager concerned, but
when it was large Shumba required the
manager to pay the amount to
Bata in cash out of his own pocket. In other words, the manager
concerned was required to put his
own cash in the till in order to
cover up the shortfall.





In
the light of that evidence, the Tribunal held, correctly in my view,
that whether the amount was deducted from the manager’s
salary or
the manager paid it to Bata in cash out of his own pocket made no
difference. In either case, it was the manager who
paid the amount
in question to Bata, and as the deduction or payment was unlawful it
had to be refunded.





That,
in my view, is the correct interpretation of what the Tribunal said
in its judgment. Although in the judgment it mentioned
the words
“unjust enrichment”, its decision was not based on that
principle. In the circumstances, there is no merit in the
first
ground of appeal.





The
second ground of appeal, i.e. that as the respondents had consented
contractually to the deductions there was no basis in law
upon which
to order reimbursement, cannot be advanced in the present appeal
because it raises the issue of Bata’s liability to
refund the
amounts deducted from the respondents’ salaries, an issue which was
finally determined by the Tribunal in favour of
the respondents in
October 1999 when Bata’s appeal was dismissed with costs. As
already stated, Bata did not appeal against the
Tribunal’s
decision.





The
third ground, i.e. that as the respondents had resigned there was no
basis upon which the Tribunal could entertain their claims,
is devoid
of merit.






The powers
of a labour relations officer are set out in s 93(1) of the
Labour Relations Act [
Chapter 28:01]
(“the Act”), and they include the power to determine any dispute
or unfair labour practice. Similarly, the powers of a senior
labour
relations officer are set out in s 95(1) of the Act.





In
terms of s 91(1) of the Act, the powers of the Tribunal are to
confirm, vary or set aside the determination appealed against,
or
substitute its own determination for the one appealed against, and in
this regard the Tribunal has the same powers as a labour
relations
officer and a senior labour relations officer, by virtue of s 91(2)
of the Act which extends the powers under s 96(1)
of the Act to
the Tribunal.





The
respondents in this case approached the labour relations officer
shortly after the termination of their employment and complained
about an unfair labour practice, i.e. that they had not been paid
their wages in full. In this regard, s 13(1) of the Act
makes
it clear that such non-payment of wages constitutes an unfair labour
practice. The section, in relevant part, reads as follows:





“Subject
to the provisions of this Act or any regulations made in terms of
this Act, whether any person –





(a) is
dismissed from his employment or his employment is otherwise
terminated; or






(b) resigns
from his employment; or …





he
… shall be entitled to the wages and benefits due to him up to the
time of such dismissal, termination, resignation …, and
the
employer concerned shall pay such entitlements to such person … as
soon as reasonably practicable after such event, and failure
to do so
shall constitute an unfair labour practice.”





In
my view, the provisions of the Act set out above indicate beyond any
doubt that the Tribunal had the power to entertain the respondents’
claims and quantify the amounts payable to them. Bata cannot,
therefore, rely upon the third ground of appeal.






However,
there are two determinations made by the Tribunal which I ought to
consider. The first is the order that Bata should
refund the sum of
$47 563.34 to Pongweni and the sum of $31 416.53 to
Machangu. And the second is the order that Bata
should pay to the
respondents their unpaid salaries and terminal benefits. With
regard to both determinations it was submitted
by Mr 
Fitches
that there was no evidence supporting them and that it was,
therefore, manifestly unreasonable to make them. I shall examine
the
determinations in turn.





In
determining the amounts to be refunded to the respondents, the
Tribunal relied upon the evidence given by the respondents.
According to that evidence, whenever there was a large shortfall in
the proceeds from the sale of shoes caused by theft of shoes
at the
retail outlets which they managed, the respondents were required by
Shumba to put their own cash in the till in order to cover
up the
shortfall. They said that Shumba threatened that unless they
carried out his instructions they would lose their jobs.
They added
that they kept written records of such payments and produced them as
part of the evidence on the refunds claimed.





Mr Sutton,
the Bata Company Secretary, who testified on behalf of Bata, did not
deny that the respondents could have put their
own cash in the tills
to cover up the shortfalls. In his evidence he said:





“If
a shortfall occurred … the manager basically would normally have
two courses of action. He could disclose the shortage in his
documentation, which is what he is supposed to do. … Or he could
simply put the money in the tills and make up the difference.
That
would be covering up the shortage.”





However,
the most important witness who should have been called by Bata was
Shumba. Both Mr Sutton and Ms Miles, Bata’s
counsel,
informed the Tribunal that Shumba had been contacted and requested to
come to the Tribunal and give evidence on behalf of
Bata. They
added that Shumba had refused to come, notwithstanding the fact that
Bata had informed him that it would pay all his
expenses.





Consequently,
Bata closed its case without Shumba’s evidence. As a result, the
respondents’ evidence against Shumba remained
unchallenged, and the
Tribunal accepted it. In my view, it was not unreasonable for the
Tribunal to do that. In fact, it had
no other option.





Finally,
I wish to deal with the determination that Bata should pay the
respondents their unpaid salaries and benefits. I find
it difficult
to understand why the claims for unpaid salaries and benefits
suddenly came up when the Tribunal was considering the
application
for the quantification of the amounts to be refunded by Bata.





The
claims were not raised by the respondents when they appeared before
the labour relations officer in September 1995. They were
not
raised when the respondents appeared before the senior labour
relations officer in December 1995, nor were they raised when the
respondents appeared before the Tribunal in September 1999.





In
fact, in the written reasons given by the labour relations officer in
September 1995 he said the following:





“(The)
complainants (i.e. Pongweni and Machangu) have, however, since been
paid all their dues including pension benefits.”





If
that were untrue, the matter should have been raised with the senior
labour relations officer in December 1995 and with the Tribunal
in
September 1999.





I
am, therefore, of the opinion that there was no basis for granting
the order concerning unpaid salaries and benefits. That order
must
be set aside.





In
the circumstances, the following order is made -






1. The order issued by the
Tribunal on 31 January 2001 is altered so that it reads as
follows –






“Bata
Shoe Company Limited shall refund the sum of $47 563.34 to
Macdonald Pongweni, and the sum of $31 416.53 to
Augustine Machangu,
together with interest at the prescribed
rate, and costs of suit.”






2. Subject to that alteration,
the appeal is dismissed with no order as to costs.


















MALABA JA: I agree.



















GWAUNZA JA: I agree.


















Webb,
Low & Barry
,
appellant's legal practitioners