Tawanda Nyambirai loses to former workers


Prominent lawyer and businessman Tawanda Nyambirai

PROMINENT lawyer and business tycoon, Tawanda Nyambirai has lost a bid to avoid paying US$12 441 to five ex-employees at his company, TN Harlequin Luxaire Private Limited (TN).
This was after the Labour Court dismissed an appeal filed by the company against an arbitral award directing TN to pay the amount.
The employees had been sent on unpaid forced leave for an unspecified period more than two years ago.
In August 2014, they were recalled to work where upon they resigned and claimed their benefits including salaries for the unpaid leave period.
The company failed to pay the terminal benefits claiming that the economy was poorly performing and that the employees were not entitled to the payment.
Having failed to reach consensus the parties presented their case for conciliation, but they still failed to settle the dispute.
This development prompted the matter to be referred for arbitration.
Upon considering facts presented by both parties, arbitrator Chikwanha found the employer guilty and ordered that the five employees be paid their terminal benefits.
Dissatisfied with the arbitrator’s ruling, TN appealed to the labour court.
In its appeal, the company argued that the arbitrator erred at law in failing to recognise the “no work, no pay” principle enshrined in Zimbabwe’s laws.
The company also submitted that the arbitrator had failed to take cognisance of the economic malaise pervasive in the country’s economy and its inevitable effects on the ability for the employer to provide work and to pay salaries.
TN further argued that there was no work done for the period hence no money is owed.
In passing judgment recorded under LC/H/281/16, Justice Godfrey Musariri said the “no work, no pay” rule was not applicable in the situation because the employees did not come to work in line with the employer’s instruction.
“The ‘no work, no pay’ principle applies in a scenario where the employee wrongfully withholds due to the employer. A perfect example being an unlawful strike. In this scenario respondents did not withhold their services. Rather, it was the employer who sent them on unpaid leave. The employer thus waived his right to receive services,” he said.
Musariri pointed out that the state of the poor performance of the national economy cannot be an excuse because it was the responsibility of the employer to terminate the contracts of employment.
He also dismissed the fact that by accepting to go on forced leave, the employees were stopped from claiming their salary arrears.
“The employees did not agree, at least not expressly to the forced leave. They complied with appellants’ wishes by going on leave. Indeed they could not force themselves upon the employer without violating one law or the other. They sought redress when the time was still legally available as per applicable laws of prescription. Thus their actions in this case cannot support the argument. All in all I consider that the award in casu is unassailable and should stand. Wherefore it is ordered that the appeal be and is hereby dismissed with costs,” ordered the judge. By Alois Vinga

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