Employment Contract re: Termination iro Termination on Notice, Summary and Mutual Termination, Resignation & Repudiation

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

The applicant is a company duly incorporated in terms of the laws of Zimbabwe. It carries on the business of electrical engineering. The first respondent was its employee. He was its Chief Executive Officer. He tendered his letter of resignation on 8 February 2010.The second respondent is the first respondent's ...

The second respondent is the first respondent's company duly registered in terms of the laws of Zimbabwe. It, like the applicant, carries on the business of electrical engineering.

In terms of clause 16.1 of the applicant and first respondent's contract of employment the first respondent is restrained from competing with the applicant. Clause 16.1 provides as follows:

“You are required to devote your attention at work to the affairs of A C Controls. You may not be involved, either directly or indirectly, during or after business hours, in any undertaking that is adverse to, prejudicial to or competing with the interests of A C Controls. All business interests must be declared at commencement of this appointment, and approval for subsequent outside business interest must be obtained from the Chairman.”

The first respondent, believing he had resigned and was no longer bound by clause 16.1, on 8 March 2010, wrote to Netone, on behalf of the second respondent, seeking to be put on its contractors list.

The request was brought to the applicant's attention by Netone. Net One is the applicant's client. The first respondent, in his capacity as the applicant's CEO, used to communicate with it on the applicant's behalf.

The applicant, believing the first respondent was still its employee, filed this application to stop the first and second respondents from competing with it. It sought a provisional order on the following terms:

“(a) That the first and second respondents are hereby interdicted from engaging in any business in competition with the applicant.

(b) That the first and second respondents are barred from providing any service to Netone.”

The applicant's counsel submitted, that, the second respondent, though not the applicant's employee, is being sued on the understanding that it is the first respondent's alter ego.

The respondents opposed the applicant's application, raising the defence, that, the first respondent is no longer the applicant's employee, as he resigned from its employment on 8 February 2010.

This case depends on the interpretation of clauses 16.1 and 23.4 of the applicant and the first respondent's contract of employment, and the determination of whether or not the first respondent's letter of resignation, dated 8 February 2010, terminated the employer/employee relation which existed between the applicant and the first respondent.

Counsel for the applicant submitted that clause 16.1 is still binding between the applicant and the first respondent because the first respondent, in spite of the purported resignation, is still the applicant's employee. He argued that the unilateral resignation violates the terms of clause 23.4 of the contract of employment which reads as follows;

“Where neither party is in breach, but termination is desirable, this shall be settled by mutual agreement.”

Counsel for the respondents submitted, that, the relationship between the applicant and the first respondent was terminated by the first respondent's letter of resignation. He further submitted, that, resignation is a unilateral act which need not be accepted by the employer. He further submitted that there was breach of contract which led to the first respondent's resignation.

Clause 16.1and 16.2

Clause 16.1 clearly deals with a situation where the employee is still in the employer's employment. It does not extend to a period after the employee's resignation.

Once the employer/employee relationship has come to an end it ceases to be of any effect.

Counsel for the applicant sought to argue, that, the first respondent is a director of the applicant and a shareholder of its subsidiary, and is therefore, by virtue of those positions, still barred from competing with the applicant.

That argument is not tenable.

It does not fall within the terms of clause 16.1 and 16.2, and the first respondent's acceptance of those positions has not yet been agreed.

In his letter of resignation, the first respondent sought to be informed of the terms on which he was being offered those positions. This means there is no agreement on those positions. The applicant's argument cannot succeed because clause 16.1 does not restrain trade for the first respondent's directorship or his being a shareholder of the applicant's subsidiary, and, the agreement between the parties on these appointments has not yet been finalized.

Clause 23.4

The applicant's counsel submitted, that, this clause was not breached, and because there was no breach therefore the applicant's letter of resignation did not terminate the contract of employment.

Counsel for the respondents submitted, that, the first respondent's letter of resignation clearly states that there was breach of contract and specifies the aspects of the contract which were breached. He, on p1 of the letter of resignation, said;

“I also indicated that the current revenue base does not allow the company to pay for my family's (immediate and extended) needs and basic survival. Since October 2009 I had to liquidate family assets to survive. I should underline that I have no ill feelings on the company for this situation. The business environment dictated the present situation.”

The letter of resignation is complaining of the applicant's failure to meet its contractual obligations. The fact that he says he understands the underlying reasons for the breach does not mean that there was no breach.

In the circumstances, the applicant breached the first respondent's conditions of service, resulting in his having to liquidate his family assets to survive. The applicant cannot, in these circumstances, be heard to say that there was no breach and the first respondent had to resign by mutual agreement in terms of clause 23.4. The first respondent was entitled to resign in the manner he did because there was a breach of contract by the applicant.

Notice

The first respondent resigned without giving the applicant notice. He, in paragraph 4 of his opposing affidavit, states:

“I am no longer an employee of the applicant company since I resigned from my post as its Chief Executive Officer on the 8th of February 2010, and the applicant's representative had knowledge of the resignation as from the 9th February 2010.”

The letter of resignation, in the first paragraph, states:

“I hereby formally advise that I am resigning from the position of Chief Executive of A C Controls with effect from 8 February 2010.”

The letter is dated 5 February 2010, and the first respondent says the applicant's representative became aware of it on 9 February 2010.

There was therefore no notice at all, and this was a unilateral termination of the contract of employment.

If a contract of employment can be terminated unilaterally the first respondent is now free to compete with his former employer, the applicant, as clause 16.1 is restricted to the period during which he was under the applicant's employment. On the other hand, if a contract of employment cannot be terminated unilaterally then the first respondent is still the applicant's employee and cannot compete with his employer, the applicant, until the contract of employment is properly terminated.

The Resignation

Counsel for the respondents submitted, that, resignation is a unilateral act which entitles the employee to terminate the contract of employment without the consent of the employer. Counsel for the applicant submitted, that, resignation does not terminate the contract until it is accepted by the employer.

I agree with counsel for the respondents submission, that, an employee's resignation unilaterally terminates the contract of employment. His submission is supported by the decision of this court in the case of Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR 137 (HC) where it was held, that, a letter of resignation constitutes a final act of termination by an employee, the effects of which he cannot avoid without the permission of the employer.

This means, once the employee tenders a letter of resignation to his employer, the contract of employment is terminated as the employer cannot refuse to accept his resignation, but can only agree to the employee's withdrawal of his resignation if he is inclined to doing so. The employer can, however, institute a claim for the damages he may suffer as a result of the employee's resignation without giving him adequate notice: see also the case of Mudakureva v Grain Marketing Board 1998 (1) ZLR 145 (SC) where the Supreme Court confirmed the finality of a letter of resignation pointing out that the employee could only have avoided it by proving that the employer forced him to resign, and thereby turning it into a constructive dismissal.

In the result, the first respondent's unilateral resignation terminated the contract of employment which existed between him and the applicant.

In view of the termination of the contract of employment, the first respondent is no longer bound by clause 16.1 of the contract of employment. It therefore follows, that, the second respondent, whom the applicant sought to restrain on the basis of its being the alter ego of the first respondent, cannot be bound by a contract which no longer binds the first respondent.

The applicant's application is therefore dismissed.

The applicant shall pay the respondent's costs.

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn.

(A) THE VALIDITY OF MR MOYANA'S DISMISSAL ON 28 MAY 1987

I noted earlier that the Corporation seemed to ignore the advice of the High Court that it should, again, seek authority to dismiss Mr Moyana.

The letter of 28 May 1987 is very curiously worded. It begins by saying:

"This letter is to inform you of the termination of your employment with the Art Printers Group in terms of sections 3(a), 3(b), 3(g) and 3(h) of Statutory Instrument 371 [of 1985]."

Yet, those subsections do not deal with termination of employment. They deal with summary suspension without pay.

The Corporation was well aware of this because earlier, on 16 July 1986, it had acted under this section and had summarily suspended Mr Moyana. It is difficult to understand how the Corporation thought it could dismiss Mr Moyana under this section.

Before us, counsel for the appellant did not seek either to defend or explain these contradictions. He asserted that the letter of 28 May 1987 was a dismissal on one month's notice and contended that dismissal on notice was lawful in terms of the Labour Relations Act. Insofar as section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 contradicted the assertion, it was, he claimed, ultra vires the Labour Relations Act 1985.

I will assume that the letter of 28 May 1987 can be regarded as a dismissal on notice because it reads in part:

"However, the Company intends nevertheless to pay you not only your salary in respect of May 1987 (which has already been paid) but also a month's pay in lieu of notice, that is to the 30th June 1987."

Despite this, I remain un-persuaded that the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 are ultra vires.

Basically, I agree with the reasoning of the President of the Tribunal, who relied, in turn, upon a decision of the Judge President of the High Court in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88.

I will therefore set out my reasons only briefly.

Counsel for the appellant's central submission was that section 12(1)(a) of the Labour Relations Act No.16 of 1985, enshrines the right of an employer to terminate a contract on notice. That being so, the Minister has no power, by Regulations, to qualify or, a fortiori, to eliminate that right.

I will accept, for purposes of argument, that the conclusion is correct. It is the premise, in my view, which is false.

Section 12(1)(a) of the Labour Relations Act reads as follows:

"Except where a longer period of notice has been provided for in any contract or in any relevant enactment, every contract of employment made without reference to time, not being a contract to perform some specific service, shall be deemed, in the case where -

(a) The contract is to pay wages at a monthly rate, to be a contract from month to month, terminable by either party at any time upon giving not less than one month's notice, terminating on the last day of a month…,."

This section does not enshrine the right of an employer to terminate a contract on notice. All it does is to introduce a statutory term into employment contracts which are " made without reference to time."

The section in fact says nothing about the contract with which we are concerned, because that contract did specify a month's notice. It was not "made without reference to time." I am entirely satisfied that the section is no more that a deeming section. It speaks only of the content of a contract of employment; it says nothing about the enforceability of the terms deemed to be part of the contract.

It is interesting, as confirmation of the above, that sections 13, 14 and 15 of the Labour Relations Act 1985, to which counsel for the appellant referred by way of analogy, all contain the words "shall be entitled".

No such words appear in section 12 of the Labour Relations Act 1985.

There is a further reason, if further reasons are necessary, why I am unable to accept the submission that section 12(1)(a) of the Labour Relations Act 1985 enshrines the right of an employer to terminate a contract of employment on notice.

Insofar as there is ambiguity in the provisions, although I do not believe there is any, one must look for an interpretation which is consistent with the context within which the words came into existence. In looking at the context, one has in mind the words of SCHREINER JA in Jaga v Donges NO & Anor: Bhana v Donges NO & Anor 1950 (4) SA 653 (A)…,.:

"'[T]he context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted.

Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its backgrounds."

The long title of the Labour Relations Act No.16 of 1985 sets out its purpose to be:

"To declare and define the fundamental rights of employees; to define unfair labour practices; to regulate conditions of employment and other related matters…,."

The provisions of the Labour Relations Act No.16 of 1985 itself confirm the clear impression that one of its fundamental objects is to improve the lot of the employee. Thus -

(a) There is no definition or declaration of the fundamental rights of employers, whereas Part II sets out the fundamental rights of employees;

(b) Part III sets out unfair labour practices which may be committed by employers, by trade unions, and by worker' committees. There is no specific references to unfair labour practices by individual employees, though section 20 allows the Minister to prescribe acts or omissions which constitute unfair labour practice by employees. Apart from failure to comply with the provisions of a Collective Bargaining Agreement (section 87(3) of the Labour Relations Act) no such practice has been defined: see the Third Schedule to S.I.368 of 1985;

(c) The general conditions of employment defined are all minimum requirements and may be improved, in favour of the employee, by contract or by Regulations, industrial agreement, or determination: see generally Part IV of the Labour Relations Act;

(d) Specifically, section17 of the Labour Relations Act gives the Minister regulatory powers for the "development, improvement, protection, regulation, and control of employment and conditions of employment."

These Regulations have overriding force: see section 17(2) of the Labour Relations Act No.16 of 1985.

In the wider context, too, one construes the Labour Relations Act No.16 of 1985 according to its historical setting and in terms of the "mischief" rule.

LORD SIMON of GLAISDALE, in his speech in Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 (HL)…, spoke of:

"…, ascertaining, first, the general situation in which Parliament was legislating, and, secondly, the particular situation for which Parliament was providing a remedy. These are really different aspects of the same canon of construction; though the former is sometimes called construction according to 'historical setting', the latter 'the mischief rule'. "

Thus, when the decision in S v Jovner 1982 (2) ZLR 252 (SC) showed that the Employment Act 1980, in its section 8, and the Employment (Conditions of Service) Regulation 1981, in section 4, did not serve to prevent termination on notice, the President clarified the State's intentions by means of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982.

The existence of the statutory instrument was obviously known to the Legislature when the Labour Relations Act was enacted in 1985 and the overwhelming probability must be that the Legislature did not intend to go back to the status quo ante.

Indeed, one has only to look at the difference between section 17(2) of the 1985 statute and section 5(2)(a) of the 1980 statute to appreciate that the Legislature intended to confirm the reversal of S v Jovner 1982 (2) ZLR 252 (SC) achieved by section 4 and 5 of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982 which were only finally repealed by S.I.77 of 1987.

I have taken this further argument more or less directly from the heads of page 311 of 1989 (1) ZLR 304 (SC) argument of Mr Gillespie in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88 which was heard some days after the present appeal was argued.

I acknowledge the force of the submissions, and I adopt them, without deviating from my primary view that the words of the enactment are clear and do not require interpretation.

Once it is accepted that section 12 of the Labour Relations Act No.16 of 1985 does not give or enshrine a right to give notice, then one may turn again to section 17 of the Labour Relations Act No.16 of 1985, which begins:

" (1) Subject to the provisions of this Act, the Minister may make regulations providing for the development, improvement, protection, regulation, and control of employment and conditions of employment. "

Clearly, the Minister's power, under this sub-section, to "regulate" dismissal on notice, is not subject to the provisions of section 12.

Section 12 of the Labour Relations Act 1985, as we have seen, concerns only the content of contracts of employment, and section 17(2) of the Labour Relations Act 1985 makes it clear that Regulations override content, when it says -

"Regulations made by the Minister, in terms of subsection (1), shall, unless such regulations otherwise provide, prevail over the provisions of any other statutory instrument or of any agreement or arrangement whatsoever…,."

Finally, the Minister's power is defined in section 17(3)(r) of the Labour Relations Act 1985 which permits him to make regulations -

"…, specifying or otherwise restricting the circumstances in which contracts of employment may be terminated summarily or otherwise."

I am therefore satisfied that section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I. 371/1985 is not ultra vires the powers granted to the Minister in terms of section 17 of the Labour Relations Act No.16 of 1985 and is not in conflict with the provisions of section 12 of the Labour Relations Act No.16 of 1985.

The first point must therefore be decided against the appellant.

(B) REINSTATEMENT

It is quite obvious that the Corporation does not want to take Mr Moyana back.

For his part, Mr Moyana has tended to blow hot and cold. On the one hand he accepted his terminal benefits, including a refund of his pension contributions, after he was "dismissed" in May 1987. At times, in his argument, which is not always easy to follow, he seemed to accept that the termination of his employment was inevitable and acceptable to him. Thus, at p51 of the transcript of the submissions before the Tribunal (although it is headed "Labour Regulations Board" it is clearly the proceedings before the Tribunal) he is recorded as saying:

"In the final analysis also, the termination of the…, I think it was very fair. Secondly, the fact that they are saying: 'why did you not contest', whereas, in all honesty, in management, you would not want to be seen to be forcing yourself on people when it has become obvious the sun has set. All I can ask through your office, My Lord, is that they should desist from following me up. We should be allowed to part amicably…,."

A little later, he seems to go back on that statement and says categorically:

"I would like to be reinstated. "

Overall, however, one gains the very strong impression that he sees reinstatement as a bargaining counter. He wants to establish his claim to have been wrongfully dismissed, and it is in that sense, really, that he speaks of reinstatement. What he wants is to have the dismissal set aside, to have his financial rights determined, and then to part company with the Corporation.

It is important to clarify this attitude on his part because the Corporation is taking what might, in different circumstances, be regarded as a somewhat technical point against him.

They say that the Board had a discretion to reinstate him; it decided not to do so; he did not appeal against that decision; and therefore the Tribunal had no jurisdiction to reverse the decision.

The Board which made the decision not to reinstate was undoubtedly a "determining authority" as defined in terms of section 2. The Board is given the power, in section 111(2)(c), to order reinstatement in a job. Obviously, it must have a discretion in that regard. In this case, it decided not to do so on the grounds of incompatibility. That can hardly, in the circumstances, be described as a decision no reasonable Board could make.

No appeal was lodged in terms of section 40 of the Labour Relations (General) Regulations 1985, (S.I.368 of 1985) by Mr Moyana.

The Tribunal, which is a creature of statute and whose powers therefore must be founded within the four walls of the Labour Relations Act, has its powers defined in section 107 of the Labour Relations Act, which reads:

"In determining an appeal in terms of this Part, the Tribunal may confirm, vary, or set aside the decision appealed against and make an order accordingly, and may include in such order any order that to costs as it thinks fit."…,.

The decision of the Board, not to reinstate Mr Moyana, was not appealed against. He himself did not appeal at all, and the Corporation appealed only on other parts of the Board's determination.

It is true that the Corporation appealed against the date with effect from which reinstatement was refused (8 April 1988) and claimed it should have been as from 28 May 1987, but, that was not an appeal against the decision not to reinstate.

The Tribunal does not seem to have addressed itself to the legal implications of this question.

The judgment of the President does record that in terms of section 7(1) of the relevant Regulations (S.I.369 of 1985) "an appeal from a decision of the Board to the Tribunal shall be an appeal on the Record of the Proceedings before the Board and shall not be in the nature of a re-hearing…,."

This provision was, however, not considered in the context of whether the issue of reinstatement was before the Tribunal.

The Tribunal appears to have taken the view that if the dismissal was unlawful Mr Moyana was, ipso facto, entitled to reinstatement. They found his dismissal was unlawful and therefore they ordered his reinstatement.

It seems to me, with respect, that, in this, the Tribunal was wrong.

Reinstatement is not the only or the inevitable remedy for wrongful dismissal. It is a remedy. There is an alternative remedy, which is a claim for damages for wrongful dismissal.

The matter is expressed as follows in "Labour Law; Cases and Materials" by BENEDICTUS & BERCUSSON:

"The obvious remedy for unjustified ('unfair') involuntary termination is re-employment, if the employee so wishes, and, otherwise, compensation.

The first remedy is not available at common law.

The essentially reciprocal nature of contractual obligations means that it is impossible to force an unwilling party to remain bound to a contract against his will. This, in effect, gives a veto to either side to prevent the continuance of a contract of employment notwithstanding the possible merits of the other party's case for maintaining the contractual relationship.

Compensation, at common law, is minimal, being confined to the precise contractual loss suffered…,. Statute, as will be seen, has only partially overcome these limitations."

The authors then go on, at p394, to quote another book which says:

"Although reinstatement is clearly the primary remedy for unfair dismissal provided by law, very few successful applicants are awarded it. The usual remedy for successful applicants is compensation."

It would seem that the English legislation has more detailed provisions for compensation than ours, but, the point that I am making is that reinstatement is not the inevitable consequence of a finding of wrongful dismissal.

The Board decided against it, and the Tribunal had no jurisdiction to interfere with the decision in the absence of an appeal against it.

Towards the end of its judgment, the Tribunal reverted to this point. It said:

"We are unable to support the Board's finding that 'the two parties could no longer work together' on account of incompatibility. Mr Moyana has asked to be reinstated. We believe that had the position been that he was no longer prepared to work for the Corporation, he would not have prayed for this relief. In any event, incompatibility between an employer and an employee, even where it has been established, is not, in our law, a ground for the employer to terminate the contract of employment unilaterally."

This passage calls for comment in two respects:

(i) First of all, the Board's finding was not an incompetent finding. It was within the Board's powers to make such finding. That being so, the Tribunal had no power to question the finding in the absence of an appeal against it. Note that the Tribunal's review powers are very limited: section 24 of S.I.369 of 1985.

(ii) Secondly, incompatibility was not a ground upon which the employer had sought to terminate the contract of employment. It was a ground upon which the Board had decided not to order reinstatement.

I conclude, therefore, that, the question of reinstatement was not before the Tribunal and it had no jurisdiction to make an order on the subject.

(C) ACTING ALLOWANCE

The main argument put forward by the Corporation was that the claim for an acting allowance was not a dispute under the Labour Regulations Act. At best, it is a civil claim which should be bought in a Civil Court.

It seems to me that there is a great deal of merit in this argument.

Unless Mr Moyana can found his claim for an acting allowance squarely on some basis cognisable by the Labour Relations Act 1985, then, it is not a matter for determination under the Labour Relations Act.

His contract of employment makes no provision for acting allowances. In fact, it makes it clear that the salary structure in the Group is particularly flexible.

Compare the explicit provisions of section 19 of S.I.325 of1979 which deals with acting allowances in the Public Service.

There is thus no contractual basis upon which the claim may be founded.

The statute itself makes no specific provision about acting allowances, nor is there any other statutory provision in terms of which a "rate for the job" is laid down which is applicable to the facts of this case.

It has not been suggested, that, the failure by the Corporation to pay an acting allowance amounted to an "unfair labour practice" as defined in the Labour Relations Act, nor have I been able to find, in section 8 of the Labour Relations Act, or in the Third Schedule to the Regulations (S.I, 368 of 1985) anything which would indicate that failure to pay an acting allowance in these circumstances is an unfair labour practice.

Accordingly, the provisions of section 111(2)(b) of the Labour Relations Act, which begin with the words "in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee…," are not applicable.

I guard against saying that Mr Moyana has a claim under the Civil Law. All that I would say is that if he has a claim based in some way upon a quantum meruit, as counsel for the appellant suggested, such a claim should be brought before the Civil Court.

(D) COSTS

The Corporation did not press its appeal against the Tribunal's refusal to order costs either way, and counsel for the appellant indicated, that, while he did not abandon his prayer for the costs of appeal, he was content to leave the matter to the Court.

It seems to me that since each party has been partially successful, there should be no order as to the costs of appeal.

In the result, I would make the following order:

1. The appeal against the decision of the Labour Relations Tribunal, handed down on 12 October 1988, is, in part, upheld, and, in part, dismissed. More particularly -

(a) The appeal against the orders in paragraphs 1 and 4 of the Tribunal's judgment is dismissed.

(b) The appeal against the orders in paragraphs 2 and 3 of the Tribunal's judgment is allowed, and the orders as to reinstatement and the payment of an acting allowance are set aside.

3. For the avoidance of doubt, it is recorded that the order of the Labour Relations Board, declining, with effect from 8 April 1988, to reinstate Mr Moyana in his employment, stands.

Accordingly, he is entitled to his full emoluments as Principal Training Officer up to that date, from which date his employment is deemed to be terminated.

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the ...

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”

The notices of opposition filed by the respondents have raised two preliminary points which I must deal with first:

(i) It was contended, on behalf of the respondents, that the motion whose passing the applicant had sought to prevent was passed, as amended, by Parliament on Thursday 15th December 2011 and therefore the applicant's urgent application has been overtaken by events....,.

Let me quickly revert to the first preliminary point.

I do not believe that the mere passing of the motion, on 15 December 2011, deals a death knell to the concerns raised by the applicant in his application.

The passing of the motion was significant but it is not the conclusion of the whole process as evidenced by the amended motion eventually passed. The applicant has argued that the only body that supervises him in the execution of his duties is the Committee on Standing Rules and Orders chaired by the first respondent, and, it is my view that it is this committee which is mandated to initiate disciplinary proceedings against him should the need arise.

The argument is persuasive and I have no difficulties in following it…,

If the applicant's position in this regard is correct (which I am certain it is) the rules of natural justice would be seriously stampeded upon if his dismissal were to be initiated by Members of Parliament instead of the Committee which appoints him in the first place because he who hires must be empowered to fire or initiate disciplinary proceedings.

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

On 21 November 2011, the respondent offered its employees, who included the appellants, a voluntary retrenchment package – which was declined. On 15 December 2011, the respondent served each of its employees, including the appellants, with a compulsory notice of intention to retrench. The appellants and the respondent could not agree on the retrenchment terms. Having failed to agree on the terms of retrenchment, the parties referred the dispute to the Retrenchment Board. On 16 May 2012, the Ministry of Labour and Social Services directed the parties to carry out further retrenchment negotiations for another twenty-one days. On 18 May 2012, and before the expiry of the twenty-one days, the respondent wrote letters to the appellants terminating their contracts of employment on notice – as was provided for in the contracts of employment signed by both parties – with effect from 1 June 2012.

The respondent paid cash in lieu of notice and thus terminated the employment relationship.

The appellants approached a Labour Officer contending that their employment contracts had been unlawfully terminated. The Labour Officer failed to resolve the matter and referred it to compulsory arbitration. The arbitrator concluded that the termination of the contracts of employment was unlawful because the appellants had not been dismissed in terms of a Code of Conduct.

The respondent appealed to the Labour Court. The Labour Court allowed the appeal. In its judgment, the Labour Court had this to say –

“In my view, therefore, the submission that section 12B came to do away with the possibility of terminating a contract of employment on notice is a misunderstanding of the law as it stands. In any event, the provisions of section 12(4) of the Act are clear and allow no ambiguity as also the provisions of section 12B. None of the sections have the effect of doing away with the termination of a contract of employment on notice.”

In essence, the Labour Court came to the conclusion that neither section 12B nor section 12(4) of the Labour Act [Chapter 28:01] abolished the employer's right to terminate employment on notice.

I respectfully agree with this conclusion.

The section that deals with termination of a contract of employment on notice is section 12(4) of the Labour Act [Chapter 28:01].

Section 12(4) of the Labour Act [Chapter 28:01] is the section that deals with the concept of termination of employment on notice in terms of a contract of employment. It regulates the period of notice. It provides as follows-

“12 Duration, particulars and termination of employment contract

(4) Except where a longer period of notice has been provided for under a contract of employment, or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be -

(a) Three months in the case of a contract without limit of time, or a contract for a period of two years or more;

(b) Two months in the case of a contract for a period one year or more but less than two years;

(d) Two weeks in the case of a contract for a period of three months or more but less than six months;

(e) One day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work.”

The wording of section 12(4) of the Labour Act [Chapter 28:01] is so clear that it leaves little room, if any, for misinterpretation. It governs the time periods that apply when employment is being terminated on notice. It stands to reason that the notice periods do not apply when an employee is dismissed.

In instances of dismissal no notice is required.

The periods of notice referred to in section 12(4) of the Labour Act [Chapter 28:01] can only apply where there is termination of employment in terms of a process involving the giving of notice provided for in a contract of employment. I accept the appellants' contention that section 12(4) of the Labour Act [Chapter 28:01] does not create a right to terminate employment on notice. Indeed, this contention appears to be accepted by the respondent. The respondent's case is that the right to terminate employment on notice is created by common law and not by statute or section 12(4) of the Labour Act [Chapter 28:01]. It contends that section 12(4) of the Labour Act [Chapter 28:01] simply regulates the exercise of that right conferred on the employer by common law.

Section 12(4) of the Labour Act [Chapter 28:01] explicitly applies to both the employer and the employee. There is no possible explanation, and none has been advanced, why, despite the explicit language of the section, it should apply to the employee only and not to the employer; or why the section should exist to regulate a non-existent right. As counsel for the respondent aptly submitted, providing “for a time period for a right that does not exist is a puerile exercise, one which could never have been engaged in by a sane legislator.” The presumption is that Parliament must be taken to have intended its enactment to have meaning.

Section 12(4) of the Labour Act [Chapter 28:01] can only have meaning if there is a substantive right, in this case the common law right to terminate employment on notice to which it pertains. This is especially so when one considers that section 12(4) of the Labour Act [Chapter 28:01] does is to facilitate the exercise of an existent common law right.

It is for these reasons that I agree with the conclusion of the Labour Court that the respondent was entitled, at law, to give notice terminating the employment of the appellants in terms of the contract of employment between the parties.

Accordingly, the appeal fails and is hereby dismissed with costs.

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

It is also very clear that, on a proper reading of section 12B of the Labour Act [Chapter 28:01] it deals with the method of termination of employment known as “dismissal”. While dismissal is one method of termination of employment, it is not the only method of terminating an employment relationship. It is only ...

In this regard, section 12C of the Labour Act [Chapter 28:01] provides for the method of termination of employment known as “retrenchment”. Termination of employment by way of retrenchment is not a dismissal.

This court has held that termination of employment can be effected in other ways than dismissal. In the case of Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S) ..., this court made the following observation -

“it is easy to conceive of a situation in which, albeit, no blame whatsoever attaches to the employee, the inescapable inference is that the personal relationship between him and the employer has broken down to the extent that trust in one another has been lost. For a court to order reinstatement against such a backdrop of animosity and ill-will, solely because an employee unreasonably, and out of wounded pride, seeks it, would be to permit the continuation of an intolerable personal relationship – one which would make it impossible for the employee to perform his duties, either to his own satisfaction or to that of his employer.

In the Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S) case..., it was common cause that the personal relationship between the applicants and the respondent was totally destroyed. The applicants' stance was simply that the respondent, the employer, cannot terminate their employment contracts on notice at law but they can resign willy nilly. That proposition was rejected.

The same proposition that where the relationship between the employer and the employee has deteriorated to untenable levels, through no fault of either party, the relationship can be terminated, was accepted in Wintertons, Holmes & Hill v Paterson 1995 (2) ZLR 68 (S).

Quite clearly, the appellants' case is predicated on the proposition that dismissal means all forms of termination of employment. Put differently, all terminations of employment are dismissals. This proposition is not tenable on the authority of the above cases. That proposition is clearly erroneous. The proposition that there are other methods, or forms, of terminating employment apart from dismissal was clearly articulated in the case of Samuriwo v Zimbabwe United Passenger Company 1999 (1) ZLR 385 (H), wherein GARWE J..., had this to say..., -

“The Code, in compliance with s101 of the Act, steers clear of other matters that have nothing to do with misconduct, such as termination for other reasons. Whilst it must be accepted that the Code makes no provision for the Managing Director himself to be the subject of disciplinary proceedings, it seems to me that this is irrelevant as the termination in the present case is not sought on the basis of the Code but in terms of the contract of employment.”...,.

Samuriwo v Zimbabwe United Passenger Company 1999 (1) ZLR 385 (H)..., places beyond dispute the fact that there are other ways of termination of employment different from dismissal in terms of Codes of Conduct following disciplinary proceedings as provided for in the Codes of Conduct.

The proposition that an employer has a right to terminate an employment relationship on notice in circumstances other than dismissal for misconduct finds further support in the case of Gertrude Kwaramba v Bain Industries (Pvt) Ltd SC39-01 where this court accepted the employer's right to terminate the employment on notice in no fault situations.

This was followed in Chirasasa and Ors v Nhamo N.O. and Anor 2003 (2) ZLR 206 (S) where this court held that -

“In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contract of employment with the appellants by giving them one calendar months notice, and could exercise it without obtaining prior approval of the Minister. The decision in Kwaramba's case, supra, is, in my view, correct, whilst that in Masundire's case, supra, is wrong.”

SC25-16 : EUNICE MADONDO vs CONQUIP ZIMBABWE (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe handed down by CHIDZIVA J on 28 June 2013 at Harare. The appellant prays that the appeal succeeds and that the respondent be ordered to pay the costs of suit on a higher scale. After hearing counsel for both ...

After hearing counsel for both parties we dismissed the appeal with costs on a higher scale and stated that reasons would follow.

These are they.

The facts and background to this matter are as follows:

The appellant was employed by the respondent as a Finance Director from May 2007 up to February 2012. She was entitled to a number of benefits, one of them being payment of school fees for both of her children. In February 2012, the appellant had a dispute with the respondent's Managing Director and General Manager. A meeting that was held between the appellant and the General Manager resulted in her being sent home on suspension.

On 13 February 2012, the appellant completed a document called “Pension Withdrawal Claim Form” in terms of which she indicated, in writing, that the reason for the withdrawal of her pension benefits was that she was “leaving Conquip.” The date of such withdrawal was indicated as 13 February 2012. The withdrawal form was presented to the respondent's General Manager for the latter to complete the section required to be completed by a designated company official. The General Manager duly completed and signed the form which was then presented to Marsh Employee Benefits Zimbabwe (Pvt) Ltd. The pension company, in turn, processed and released the pension contributions to the appellant.

On 16 February 2012, the appellant was given a letter inviting her to attend a disciplinary hearing on 24 February 2012 at the respondent's premises. She then approached her legal practitioner who raised a number of procedural issues which, in his view, would render the hearing unprocedural. The hearing was subsequently aborted upon the realization that the appellant had indicated on the pension claim form that she was leaving Conquip, therefore, resigning from her job.

The appellant disputed that she had resigned from her employment, and stated that she had simply withdrawn herself from membership of the pension scheme because she needed money to pay school fees for her child. She contended that the Marsh Employee Benefits Scheme was an employee's scheme (not the respondent's) and was meant to benefit the employee. As such, she further argued, termination of membership with the pension scheme did not amount to unilateral termination of her employment.

The dispute was referred for conciliation and the outcome was the issuance of a certificate of no settlement. This led to the matter being referred for arbitration. The arbitrator ruled that the appellant was not unfairly dismissed but had resigned from her employment. The appellant was disgruntled at this decision and appealed to the Labour Court on the main ground that:

“The Arbitrator erred at law by making a finding that the Appellant had resigned from employment when the document that was used as evidence thereof is not a resignation letter nor is it addressed to the respondent.”

The Labour Court upheld the arbitrator's decision and determined that the appellant was not unfairly dismissed. Rather, that she unilaterally terminated her employment contract through her resignation as was indicated in the Pension Withdrawal form that she had signed.

The appellant was not satisfied by the decision of the court a quo hence the present appeal.

The issue which falls for determination is whether or not the court a quo misdirected itself by concluding that the appellant resigned from her employment with the respondent.

The appellant submitted that the court a quo misdirected itself by concluding that by signing the Pension Withdrawal form she had resigned from her employment. She boldly asserts that the statement 'leaving Conquip' that she gave as a reason for seeking to withdraw her pension contributions did not mean that she was resigning from her employment.

The respondent, on the other hand, contends that the appellant terminated her employment before the conclusion of the disciplinary hearing that had been called by it. Further, that the true meaning of the words 'leaving Conquip' was that she was resigning from her employment and not anything else.

It is, in this respect, pertinent to first define what a resignation is and then what form it should take. The Oxford Advanced Learner's Dictionary defines resignation as:

“an act of giving up one's job or position.”

The form a notice of resignation should take is not 'cast in stone' as it were. One can resign verbally, by a letter, or through whatever way may be preferred as long as the communication is transmitted to the correct recipient.

In casu, the Pension Withdrawal form which was filled by the appellant contained a section which required one to state the reason why he or she wished to withdraw the pension contributions or why they no longer wanted to be part of the pension scheme. This is where the appellant stated her reason as “leaving Conquip.” Taking the Oxford Dictionary definition of a resignation I am satisfied that this reason denoted an 'act', by the appellant, of giving up her job.

When the form, which alluded to this act of resignation, was then presented to the General Manager of Conquip for her signature, as a prerequisite to the pension withdrawal, there can, in my view, be no doubt that she was, by this token, made aware that the appellant was tendering her resignation. The appellant was both the Financial Director of the respondent and Principal Director of the Pension Fund in question. She must therefore have fully appreciated both the requirements for, and consequences of, claiming her pension contributions. Thus, from the moment the General Manager affixed her signature to the form it could no longer be argued that the appellant's resignation was not communicated to the employer and acknowledged.

In the case of Jakazi & Anor v The Anglican Church of the Province of Central Africa SC10-13 this Court stated that:

“The law is clear. Resignation is a unilateral act which takes effect upon being communicated.”

On the basis of this authority, I find that the appellant's use of the statement 'leaving Conquip' implied a unilateral act of resignation, and that it took effect the moment it was communicated to and acknowledged by, the respondent's General Manager.

The point was raised in argument as to whether or not the General Manager was a responsible authority for purposes of receiving the appellant's resignation.

I take the view that the General Manager was indeed such an authority and that she could, and did, properly accept the resignation on behalf of the employer. The Pension Withdrawal claim form signed by the appellant had a section requiring the affixing thereto of a company official's signature. This was the part that Christine Moorcroft signed as the General Manager of the company.

I am satisfied that she was a proper authority to receive the notice of resignation.

I have no doubt in my mind that in addition to being a pension claim form directed to the pension company concerned, the same document carried a clear and unequivocal message or notice directed to the respondent, that the appellant was tendering her resignation. To suggest that it was not such a notice by virtue of its composite purpose would, in my view, be to unnecessarily emphasize form over substance.

As indicated earlier, there is no set format or method of communicating the act of resignation.

It is, in my view, noteworthy that Marsh Employee Benefits Zimbabwe also understood the appellant to be resigning from her employment with the respondent and reacted accordingly. A letter which was written on its behalf to Conquip, and dated 22 February 2012, referenced the subject matter thereof as follows:

“Conquip Pension Fund

Resignation: Makarutse Eunice”

There is no dispute that the letter referred to the appellant.

In that letter, Marsh Employee Benefits Zimbabwe advised Conquip that they had transferred the sum of US$7,976=93 into the appellant's Standard Chartered Bank account because she had resigned from the company. The letter called upon the respondent to similarly release the part of the appellant's pension contributions that it, as her employer, had contributed on her behalf. There apparently were only three grounds upon which the Marsh Employee Benefits Scheme could release pension funds and these were;

(i) Death of the employee;

(ii) His or her retirement; or

(iii) Resignation from employment.

It is not in dispute that the appellant was neither dead nor was she retiring. Therefore, the only way she could have withdrawn her pension benefits was through her resignation.

Because payment of pension subscriptions and the beneficiary's continued employment with the relevant employer are inextricably linked, the pension withdrawal accorded fully with the statement that she was 'leaving Conquip'. A person who leaves his or her employment cannot expect that his or her employment-linked pension subscriptions would continue to be paid by their former employer.

By asserting in view of all this that the real reason she wished to withdraw her pension contributions was the need to raise school fees for her child, the appellant is effectively suggesting that the respondent should have read into the words 'leaving Conquip' a meaning completely different from what the words actually denoted. Further, that the respondent should have authorized the release of pension contributions that in reality would have been claimed under false pretences.

I find such suggestion to be both fanciful and totally devoid of any logical basis.

It appears to me that the conduct of the appellant in this respect smacks of a lack of integrity and is not what one may expect from a person holding the type of senior position that she held with the respondent.

Thus, when all is told, I find that the appellant properly, or at the very least substantially, notified her employer through the Pension Withdrawal form that she was leaving therefore resigning from her employment with Conquip. Further, that the application itself, for pension contributions, served to buttress the notice of resignation, and, therefore, put the matter beyond any doubt.

In the light of this, I find that the appeal has no merit and ought to be dismissed.

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

I note, in passing that section 12 of the Labour Act [Chapter 28:01] was recently amended by section 4 of the Labour Amendment Act 2015 (No.5 of 2015) in several respects appertaining to the continued subsistence of fixed term contracts and contracts for casual, seasonal or piece work. The amendment also deals with the ...

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

Resignation from office is an expression of a peculiarly personal decision. Absent credible evidence to the contrary, resignation from office is evidence of the exercise of free will. A written notice of resignation addressed…, and signed…, raises the presumption that it is a free and voluntary resignation.

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

Furthermore, there is merit in the respondent's argument that the appellant conducted herself in such a manner as to repudiate the contract of employment. This is so because it is the employer who sought after her to enquire about the progress of her recovery whilst she made no effort to indicate that she was still ...

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

The law is clear. Resignation is a unilateral act which takes effect upon being communicated. See Riva v NSSA 2002 (1) ZLR 412 (H)…, where the Court said:“It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance thereof or concurrence therein ...

HH80-10 : BISHOP ELSON MADODA JAKAZI and BOARD OF TRUSTEES, ANGLICAN DIOCESE OF THE PROVINCE OF CENTRAL AFRICA vs THE ANGLICAN CHURCH and REV. JOSEPH CHIPUNDLA and REV. RALPH PETER HATENDI
Ruled By: BHUNU J

It is an established rule that resignation is a unilateral, voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. In the case of Mazengi v Standard Chartered Bank Anor (2) ZLR 137 this court held that a letter ...

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

In Jakazi Anor v Anglican Church of the Province of Central Africa SC10-13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact. The sentiments of ...

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

In Bishop Jakazi and Anor v Anglican Church of the Province of Central Africa SC10-13 the court stated that resignation is a unilateral act which takes effect upon being communicated. See Riva v NSSA 2002 (1) ZLR 412 (H)…, where the court said; “It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance ...

“It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance thereof or concurrence therein by the party receiving the notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. It seems to me to follow that notice, once given, is final and cannot be withdrawn except, obviously, with consent…,.”

See also Muzengi v Standard Chartered Bank of Zimbabwe Ltd & Anor 2002 (1) ZLR 334 (S).

The Supreme Court, in Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC48-12 held that resignation is a question of fact and can be by conduct. The court further held that where evidence shows that a person exercised his right to terminate the relationship with the church, the resignation takes effect immediately the conduct is committed and that acceptance of a resignation does not depend upon acceptance by the person to whom it is directed. The court also held that the taking of any action inconsistent with the creed of the church amounted to repudiation, by the party so taking the action, of their position in church. Further, that a departure from the doctrinal basis upon which the church is founded amounts to repudiation.

Where a withdrawal is effected by means of a resignation, the resignation should be formal and ought to have been communicated. Once the resignation has been communicated it becomes binding on the giver unless it is withdrawn with the consent of the other party. There is no requirement that it be accepted or be responded to….,.

Regarding resignation by conduct.., the position was well enunciated in Sick and Funeral Society of St John's Sunday School v Golcar (1973) 1 CH 51…, where the court remarked as follows;

“It must be accepted that there can be resignation by conduct in addition to resignation by words.”

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

A person will be deemed to have resigned from an office if evidence of his or her conduct shows that he or she exercised the right to resign notwithstanding absence of notice to the appropriate authority of an intention to resign….,. otherwise it would mean a person could leave office and return to an organization ...

SC59-18 : ST. GILES MEDICAL REHABILITATION CENTRE vs LAMBERT PATSANZA
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The appellant also erred in dismissing the respondent on two weeks' notice which was not provided for in the contract of employment.

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

Whether or not the respondent was entitled to terminate the contracts on grounds of repudiation The respondent contends that the applicants have repudiated their employment contracts by failing to report for work and making themselves available for work. This is denied by the applicants who allege that the argument of repudiation is merely based on letters written by ...

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

The first ground of appeal challenges the constitutionality of the provision introduced by the Labour Amendment Act No.5 of 2015 stipulating the retrospective payment of minimum retrenchment packages to employees who were dismissed on notice. At the hearing of the appeal, counsel for the appellant conceded that this ground could not be persisted with in light of ...

CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

The appellants in Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC) (the Zuva Petroleum judgment) were employed by Zuva Petroleum (Pvt) Ltd (“the company”). The company wrote letters to the appellants giving them notice of its intention to terminate their employment at the end of three months. Thereafter, the company paid the ...

Aggrieved by the company's action, the appellants approached a labour officer alleging that the termination of their contracts of employment was unlawful. They accused the company of unfair labour practice. The labour officer failed to resolve the dispute by conciliation. He referred the dispute to an arbitrator, who subsequently found that the termination of the contracts of employment was unlawful because the appellants had not been dismissed in terms of a Code of Conduct.

The company appealed to the Labour Court on the ground that termination of contracts of employment on notice was lawful as it was provided for in the contracts between the parties. The appellants had contended, before the Labour Court, that the provisions under section 12B of the Labour Act on “unfair dismissal” had abolished the right of employers to terminate employees' contracts on notice. The Labour Court allowed the appeal by holding that the provisions of the Labour Act did not abolish the employer's common law right to terminate employment on notice.

The appellants appealed to the Supreme Court.

On 17 July 2015, the Supreme Court dismissed the appeal, thereby upholding an employer's right, at common law, to terminate a contract of employment on notice as provided for in the agreement between the parties.

The reaction to the Zuva Petroleum judgment was a rush by employers, including the applicants, to terminate employment relationships on notice. Termination of employees' contracts on notice became a strategy adopted by employers countrywide to get rid of employees to save costs in an environment of economic difficulties. Employees were only paid cash in lieu of notice, regardless of the length of service rendered to the employer. No further benefits accrued to the large numbers of employees whose employment contracts were terminated after 17 July 2015.

As large numbers of employees were left jobless and un-compensated for the years that they had worked for their respective employers, save for their salaries paid in lieu of notice, there was widespread public outcry. The actions of employers revealed a national crisis characterised by lack of protection for the employees who lost employment. Some of the employees were sole breadwinners for their families. Termination of sources of livelihood wrought severe financial hardships on households.

That gave the Legislature the rational basis for the enactment of the legislation and for giving it retrospective effect….,.

The Legislature amended section 12 of the Labour Act, through section 4 of the Labour Amendment Act (No.5) 2015. Section 12 of the Labour Act provided for the duration, particulars, and termination of employment contracts. In particular, section 12(4) of the Labour Act regulated the notice periods to be given in respect of different types of employment contracts. Section 12(4) of the Labour Act was amended by the insertion of sub-paragraphs (4a) and (4b), which provide as follows:

“(4a) No employer shall terminate a contract of employment on notice unless -

(a) The termination is in terms of an employment code, or, in the absence of an employment code, in terms of the model code made under section 101(9); or

(b) The employer and employee mutually agree, in writing, to the termination of the contract; or

(d) Pursuant to retrenchment, in accordance with section 12C.

(4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without limitation of time, the provisions of section 12C shall apply with regard to compensation for loss of employment.”

Section 12C of the Labour Act was repealed and substituted as follows:

“12C Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a)

(1) An employer who wishes to retrench any one or more employees shall -

(a) Give written notice of his or her intention -

(i) To the works council established for the undertaking; or

(ii) If there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or

(iii) If there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and, in such event, any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf; and

(b) Provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and

(2) Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called 'the minimum retrenchment package') of not less than one month's salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month's salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12(4a)(a),(b) or (c)), no later than the date when the notice of termination of employment takes effect.

(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously, or at all, the employer shall apply, in writing, to be exempted from paying the full minimum retrenchment package or any part of it to -

(a) The employment council established for the undertaking or industry; or

(b) If there is no employment council for the undertaking concerned, to the Retrenchment Board:

which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board –

(a) Shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and, if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;

(b) Shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;

(c) May inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”…,.

The right to terminate employees' contracts on notice exercised on or after 17 July 2015 was retained by the retrospective application of the legislation imposing the new financial obligation on the employers who terminated employees' contracts on notice. It became a statutory right, exercisable where it has been specifically provided for in the situations prescribed under section 12(4a) of the Labour Act [Chapter 28:01]….,.

The Legislature must have been aware of the fact that employers who terminated employees' contracts on notice following the Zuva Petroleum judgment (Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC)) did so because they believed it was cheap and easy to dispose of employees that way.

In fact, the Zuva judgment (Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC)) was mis-interpreted to mean that an employer could terminate the employment contracts of any number of employees at will. There were other provisions in the Labour Act which prohibited the wholesale termination of employment. For example, section 12C of the Labour Act, before it was amended, provided that the termination of employment of five or more people amounted to retrenchment and that retrenchment legislation was to apply….,.

A system that allows an employer to just wake up one bad day and decide, for undisclosed reasons, to terminate a contract of employment by giving notice of intention to do so without any regard to the need to compensate the employee for loss of employment is fundamentally unfair…,.

The employers did not need to be told that the law required that labour matters must be handled fairly and justly….,.

Section 12C(2) of the Labour Act is consistent with international best practices. The International Labour Organisation Convention 158 (“the Convention”) contains principles which have been accepted at international level on how employees whose contracts of employment have been terminated on notice at the initiative of employers must be treated under national law.

Article 12(1) of the International Labour Organisation Convention 158 provides:

“12(1) A worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to –

(a) A severance allowance or other separation benefits, the amount of which shall be based, inter alia, on length of service and the level of wages and paid directly by the employer…,.”

Section 12C(2) of the Labour Act gives effect to the purpose of Article 12(1) of the International Labour Organisation Convention 158 of ensuring that workers whose employment has been terminated on notice, at the initiative of the employer, are afforded some form of income protection to mitigate the adverse effects of termination of employment….,.

The adoption of principles of Article 12(1)(a) of the International Labour Organisation Convention 158 is an important factor which serves to show that the decision to retrospectively apply the financial obligation on employers who had terminated employees' contracts on notice on or after 17 July 2015 to pay them the minimum retrenchment package based on length of service was not based on arbitrariness. It was based on internationally acceptable legal standards.

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

Counsel for the appellants submits that the real reasons for the termination of the appellants' contracts were the impact of budgetary constraints and the consequent need to restructure the respondent's operations. This appears from the notices of termination sent to the appellants on 27 March 2007. Because this premature termination ...

SC42-19 : PIONEER TRANSPORT (PRIVATE) LIMITED vs ELIZABETH ANA DA SILVA
Ruled By: GARWE JA, GOWORA JA and PATEL JA

At the conclusion of arbitral proceedings, the arbitrator upheld the respondent's claim for unlawful dismissal and ordered her reinstatement, or, alternatively, payment of damages in lieu of reinstatement. An appeal against the award to the Labour Court was dismissed with costs. The present appeal is against that order. FACTUAL BACKGROUND The respondent was employed as Finance Director by the ...

FACTUAL BACKGROUND

The respondent was employed as Finance Director by the appellant on a 3-year contract, renewable subject to satisfactory performance, commencing on 1 April 2013. Having successfully completed her period of probation, she was confirmed as Finance Director by letter dated 2 August 2013. In a letter dated 12 February 2014, the Managing Director of the appellant wrote to the respondent expressing his displeasure at what he perceived to be incompetent performance of duty on her part. In the letter, the Managing Director warned her against such poor performance and indicated that the three months that were to follow would be decisive of her continued tenure as Finance Director.

On 18 July 2014, the Managing Director wrote to the respondent terminating her contract of employment with effect from 31 August 2014. The letter stated as follows:

“Pursuant to discussions held on 30^th June 2014, ref your performance and the restructuring that is ongoing, you are hereby given 2 (two) months notice of the termination of your contract of employment. The notice period will run effectively from 1^st July to 31^st August 2014…,.”

On 28 July 2014, the respondent wrote to the Managing Director disputing the lawfulness of the decision to terminate the contract of employment and pointing out the failure on his part to follow due process before such termination. The matter was subsequently referred to a labour officer who, after issuing a certificate of no settlement, referred the matter to arbitration on the issue whether the termination of the contract was lawful, and, if not, what the appropriate remedy was in the circumstances.

In her Statement of Claim, the respondent submitted that the letter of 12 February 2014, which contained a warning over alleged poor performance on her part, was authored without due regard to due process. She further submitted that the basis for the termination of the contract of employment was the alleged poor work performance and restructuring of the company. In these circumstances, a disciplinary hearing should have been held prior to the decision to terminate her contract of employment. The failure to do so meant that the termination was improper. She accordingly sought an order for her reinstatement, and, in lieu thereof, damages.

In its Statement of Defence, the appellant stated as follows. On or about 30 June 2014, the respondent met with the appellant's Managing Director during which meeting the parties discussed the respondent's performance and the restructuring exercise that the company had embarked on to reduce its operating costs. During that meeting, the respondent and the appellant's Managing Director “agreed that the respondent was going to leave the employ…, at the end of the month on 31 July 2014 subject to a proper hand over take over process having been concluded. It was also agreed that the claimant would be paid cash in lieu of the notice. In other words, the parties agreed to terminate their relationship.”

The appellant further indicated, in its Statement of Defence, that it intended to lead oral evidence from the Managing Director to show that the termination was pursuant to an agreement between the parties, and, in particular, pursuant to “her own agreement to end her employment” with the appellant. It further averred that the letter written by the Managing Director on 18 July 2014 was written at the instance of the respondent to confirm the earlier discussion.

The appellant denied that the respondent had been unlawfully dismissed, adding that the circumstances clearly showed that the parties had agreed “to end their relationship with the claimant leaving her employ upon being given notice.”

The appellant admitted that, initially, the respondent was given only two months' notice as provided in her contract of employment. However, in a letter dated 25 August 2014, the respondent was advised that she was going to be paid cash in lieu of three months' notice due to her.

In his assessment of the facts, the arbitrator found that the appellant had been inconsistent in its defence. It had claimed that the termination was effected pursuant to an agreement, and, in the same breath, was arguing that the termination was by notice. The arbitrator remarked that “termination by notice is not the same as termination by mutual consent. Where the employer terminates by notice, the employer makes a unilateral act. It is not mutual termination…,. In any event…, mutual termination…, ought to be in writing.”

The arbitrator found that the termination of employment in this case was inextricably linked to performance and the restructuring of the company. In these circumstances, the appellant should have either instituted disciplinary proceeding or engaged the employee to agree on a termination package. Consequently, the arbitrator found that the termination was neither mutual nor lawful. He accordingly upheld the claim for unlawful dismissal.

PROCEEDINGS BEFORE THE LABOUR COURT

Dissatisfied, the appellant appealed to the Labour Court. It argued, before that court, that the arbitrator had erred in holding that it (i.e. the appellant) could not, in the circumstances, terminate the respondent's employment contract on notice and that the finding that the contract was terminated on account of performance or restructuring was a gross misdirection.

It further submitted that since it was a term of the contract of employment that the employment could be terminated on notice, the appellant was within its rights to terminate the contract on notice. There was no obligation to give reasons justifying such termination on notice. There was therefore no need for the appellant to resort to a Code of Conduct.

It is worth noting that, before the Labour Court, the appellant did not rely on the agreement allegedly reached between the parties to mutually terminate the employment relationship.

The Labour Court found that the notice of termination was predicated on the respondent's alleged poor performance and that the arbitrator had been alive to the law which provides for termination of employment on notice. It accordingly found no merit in the appeal and dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy, once again, the appellant noted an appeal against the decision of the Labour Court upholding the arbitral award. In seeking an order setting aside the arbitral award, the appellant relies on three grounds, namely:-

“1. The court a quo grossly misdirected itself in holding that the Respondent's contract had been terminated on notice on account of poor performance or incompetence. The Court did not turn its mind to the fact that the Notice to Terminate delivered by the Applicant to the Respondent did not, at any point, state that such termination was motivated or actuated by the respondent's poor performance or incompetence.

2. The Court a quo also erred at law in failing to hold that the Respondent had been validly terminated on notice and therefore the arbitral award before it was anomalous in this regard. At the relevant time, a contract of employment could have been validly terminated with one party giving the other notice of intention to terminate the contract. Prior attempts at termination or disciplinary measures are irrelevant considerations on adjudicating on the validity of such termination.

3. The Court a quo also fell into serious error when it conflated the requirements of a dismissal and termination on notice. Termination on notice is a distinct and legally legitimate manner of ending an employment relationship quite distinct from dismissal for some infraction or breach of contract.”

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In its submissions, the appellant argued that the issue for determination is whether the appellant's right to terminate on notice was properly exercised, bearing in mind that, at the relevant time, the law allowed the termination of an employment contract on notice.

The court a quo had made constant reference to dismissal when the matter before it related to termination on notice. The letter of 18 July 2014 clearly articulated that the contract was terminated on notice. The law permitted the appellant to terminate the contract for any reason, or no reason, with no obligation to communicate or justify such a course.

The finding by the court a quo, that the termination was premised on allegations of incompetence, is a misconception. Whilst the letter of termination recalls other issues discussed on 30 June 2014, the termination that followed was not based on incompetence or poor performance. The notice of termination was issued on the understanding that the employment relationship had to end and the finding that the respondent was dismissed for under-performance was a clear misdirection.

Counsel for the appellant, during submissions, accepted that the respondent's contract of employment made no provision for termination on notice.

RESPONDENT'S SUBMISSIONS ON APPEAL

In her submissions, the respondent argues that the issue requiring determination is whether termination on notice is available as an option where the underlying basis for termination is disciplinable conduct. In other words, the question is whether the general provisions which regulate termination on notice can override the specific provisions dealing with termination on account of misconduct.

In her view, the appellant adopted a wrong form of termination, rendering such termination unlawful.

At arbitration, the argument by the appellant was that the termination was effected through mutual agreement, an argument that was inconsistent with the argument adopted in the court a quo that the termination was done unilaterally, on notice. The respondent argued that the right to terminate on notice was never the appellant's argument before the arbitrator. For that reason, the appellant should have resorted to the disciplinary process before terminating the employment contract.

Further, the letter of termination written by the appellant makes it clear that performance was the motivating factor in the decision to sever its relationship with the respondent. The respondent argued, further, that the general provisions of section 12(4) of the Labour Act cannot be used in place of section 12B of the same Act.

Lastly, she submitted that the belated submission by the appellant that it relies on a termination on notice is an attempt to ride on the judgment of this Court in Don Nyamande v Zuva Petroleum (Private) Ltd SC43-15. The appellant must have wrongly believed that it was entitled to terminate the contract of employment on notice despite the fact that the underlying reason related to poor work performance.

ISSUE FOR DETERMINATION BEFORE THIS COURT

The simple issue before this Court is whether the court a quo correctly dismissed the appeal against the award made by the arbitrator upholding the claim for unlawful dismissal and reinstatement.

In order to resolve this question, there is need to determine what the appellant's case at arbitration was, and, thereafter its case before the Labour Court, and, lastly, what its case is before this Court.

In its Statement of Defence, the appellant stated as follows:-

“During the meeting of the 30^th June 2014 it was agreed by the Claimant and Mr. Smuts, representing the Respondent, that the Claimant was going to leave the employ of the Respondent at the end of the month on the 31^st July 2014 subject to a proper hand over take over process having been concluded. It was also agreed that the Claimant would be paid cash in lieu of the notice. In other words, the parties agreed to terminate their relationship.”

The appellant continued:-

“Pursuant to the meeting, the Claimant approached Mr Smuts and requested that she be given written confirmation of her termination, which confirmation was given to her under cover of the letter dated 18^th July 2014. It must be stressed that the termination of the claimant's contract was not premised on poor performance. The respondent has indicated to this tribunal that it intends to lead oral evidence from Mr. Smuts who represented it during the meetings with the Claimant.”

Although in the Statement of Defence the appellant indicated that the employment relationship was to terminate with effect from 31 July 2014; in the letter written on 18 July 2014, the appellant made it clear that the notice period was in fact to run until 31 August 2014. The letter did not refer to the agreement allegedly reached on 30 June 2014, to mutually terminate the employment relationship. Instead, it refers to discussions regarding the respondent's performance and the restructuring of the company.

It is important to stress that, before the arbitrator, the appellant's position was that the termination of employment was pursuant to an agreement and that such termination was to be effective on 31 July 2014. It is clear from the Statement of Defence that the letter of 18 July 2014 was written at the instance of the respondent to confirm this position. It seems to me, therefore, that before the arbitrator, it was not the appellant's case that it had invoked the provisions of section 12(4) of the Labour Act, which, at that time, stipulated the length of the notice of termination to be given in cases where either party may have wished to terminate the contract on notice to the other.

The earlier decision by the appellant, to call evidence to prove the existence of an agreement, was abandoned notwithstanding the clear position of the respondent in her replication before the arbitrator that she had not verbally agreed to a termination of her employment. She even challenged the appellant to show how such an agreement would, in any event, have been lawful in view of the requirement that the agreement should be in writing.

My understanding of the position of the appellant, at the stage of arbitration, is that the appellant was saying the claim for unlawful dismissal should be dismissed on account of the fact that the parties had agreed that her employment be terminated with effect from 31 July 2014, which date appears to have been altered to 31 August 2014. It was for this reason that the appellant intimated its intention to call Mr Smuts, its Managing Director, to prove the existence of such agreement.

The arbitrator, in his award, commented on what he perceived to be uncertainty in the appellant's defence. I quote his remarks in this regard:-

“The Respondent seemed to clutch at straws on which defence to rely on. In another angle, Respondent suggest (sic) that termination was by notice. I believe, even if one were to argue along those lines, termination by notice is not the same as termination by mutual consent. Where the employer terminates by notice, the employer makes a unilateral act. It is not a mutual termination. This line of argument…, contradicts…, submissions that there was a mutual agreement to terminate the employment relationship at the meeting of 30 June. In any event, the facts of this case are argued on the basis of mutual termination, which ought to be in writing, or, alternatively, Claimant would have tendered her resignation, which is a unilateral act by the employee…,.”

Based on that summation, the arbitrator was convinced that there had been no agreement to terminate the agreement between the parties. In any event, as already noted, the respondent had, in her replication, denied the existence of such agreement. In the absence of such a mutual termination, the arbitrator found that the decision by the appellant, terminating the employment relationship on 18 July 2014, was therefore improper and unlawful. The arbitrator also found, as a consequence, that no mutual termination having been proved, the reference in the letter to performance and restructuring meant that the appellant had two options at that stage. These were either to institute disciplinary proceedings or to agree on an exit package. In the absence of either, the termination was therefore unlawful.

It is clear that, before the Labour Court, the appellant completely abandoned the argument that the termination of the contact of employment had been mutually agreed. The appellant's argument before that court was, in the main, that the arbitrator had erred in failing to hold that, at law, the appellant had the right to terminate the contract of employment on notice. Needless to say, the court a quo upheld the arbitral award declaring the termination of the employment contract to be unlawful.

Before this Court, the appellant, again, changed tact. It argued that it never relied on poor performance as a basis for termination of the contract. It submitted that indeed the parties agreed at the meeting of 30 June 2014 to terminate the employment. However, because the respondent reneged on that agreement, the appellant had then decided to invoke the provisions of section 12(4) of the Labour Act to terminate the employment contract on notice.

Counsel for the appellant stated that the letter of termination dated 18 July 2014 was not predicated on the agreement reached on 30 June 2014, but, rather, was a unilateral decision by the appellant to terminate the contract of employment in terms of its common law right to do so by giving the notice periods reflected in section 12(4) of the Labour Act.

I have considerable difficulty with the submissions made by the appellant before this Court. It was never its case before the arbitrator that the respondent reneged on the mutual termination discussed on 30 June 2014 and that it had, as a consequence, been forced to invoke its common law right to terminate on notice. Rather, its position before the arbitrator was that the parties had agreed that the contract be terminated with effect from 31 July (or August) 2014. It was its claim that the respondent requested that this development be confirmed by letter, which was done by letter dated 18 July 2014.

The appellant expressed the desire to call evidence to prove the existence of the agreement. This begs the question: why call evidence to prove a decision made unilaterally to terminate the agreement on notice in terms of section 12(4) of the Labour Act?

It certainly was not its case before the arbitrator that the termination effected on 18 July 2014 was a unilateral act on its part.

The shift in the appellant's defence belies its belated attempt to rely purely on its common law right, at that time, to terminate the employment contract on notice. Clearly, therefore, once the arbitrator found that the defence of mutual termination had not been proved, he had no option but to find, as a corollary, that the termination was, in the circumstances, unlawful.

DISPOSITION

In all the circumstances, therefore, I am not persuaded that the arbitrator misdirected himself in any way or that the Labour Court erred in dismissing the appeal against the arbitral award.

In the result, it is ordered as follows:-

“The appeal be and is hereby dismissed with costs.”

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court handed down on 1 June 2018 dismissing, with costs, an appeal made by the appellant against an arbitral award made by an arbitrator on 18 July 2017.FACTUAL BACKGROUNDThe appellant is a holding company with subsidiaries which include Ballantyne ...

FACTUAL BACKGROUND

The appellant is a holding company with subsidiaries which include Ballantyne Butchery (Private) Limited t/a Dan Meats and Triple C (Private) Limited. From August 2007, it employed the respondent as the Finance Manager of Ballantyne Butchery (Private) Limited t/a Dan Meats.

About January 2009, the appellant re-assigned the respondent to another subsidiary, Colcom Trading (Private) Limited, as Finance Manager, on the same employment conditions. He was again moved to Colcom Services (Private) Limited on the same conditions in 2011.

The fortunes of the appellant took a down turn about March 2013. As a result, a restructuring exercise was undertaken the effect of which was to include the respondent in a list of those who were to be retrenched from employment. Thereafter, the parties haggled for some time about the terms of retrenchment. During the course of that exercise, an opening occurred when the Finance Manager of Triple C (Private) Limited, another subsidiary of the appellant, immediately resigned leaving the post vacant.

The appellant seized the opportunity, and, by letter dated 11 March 2013, it offered the post to the respondent. As the position was the same grade as that held by the respondent, the transfer to Triple C (Private) Limited was said to be a lateral one. The offer letter written to the respondent made it clear that the appellant would gladly “clarify any clause in the contract” which the respondent felt needed clarification.

The employment letter containing the terms and conditions of employment was attached and a request was made for the respondent to signify his acceptance by signing an acceptance slip at the end of the letter. The respondent had misgivings about the terms contained in the letter and endorsed his reservations of what he termed “varied terms and conditions” in long hand at the bottom of each page of the appointment letter. Notwithstanding his reservations, the respondent signed the “acceptance of new contract” slip on 23 May 2013. He however indicated that he would continue reporting at his old station “under protest.”

The respondent was advised to report for duty at Triple C (Private) Limited on 27 March 2013.

He did not do so insisting on remaining at his former station from where he had been transferred. In fact, he lodged a complaint of an unfair labour practice with a Labour Officer. By letter dated 27 May 2013, the group Human Capital Director of the appellant put the respondent on terms to report for duty at his new employment station. The letter reads in relevant part:

“RE: YOUR FAILURE TO REPORT FOR DUTY AT TRIPLE C

It has come to our notice that you have not reported for duty at Triple C as per the letter of transfer which you signed for in acknowledgment of receipt on 23rd May 2013 and indicated therein that you were to report for duty as required of you but under 'protest.'

Your 'protest' arises from what you term 'variation of terms and conditions' of your employment.

While we were in the process of attending to the 'issues' you raised as alleged variations of terms and conditions of employment, we note, with regret, that you have already lodged a claim of unfair labour practices with the office of a Labour Officer on the same issues. In the circumstances, our due consideration of your 'concerns' has been rendered irrelevant by you.

However, in the meantime, please note that we expect you to report at Triple C and exercise your duties as Finance Manager than to sit idle in your office as you are doing. Should you fail to do so by 0800 hours on 29th May 2013, your conduct will be a repudiation of your employment to which we will accept your wishes and pay you your terminal benefits.

Please therefore be guided accordingly.

Kind regards
Z.Matsika
Group Human Capital Director.”

The respondent again defied the order to report for duty at Triple C (Private) Limited. The appellant then served the respondent with a notice of termination of the employment contract on 30 May 2013. He was advised that his terminal benefits, together with three months' notice pay, would be processed and paid into his Bank account.

The respondent was unhappy with that turn of events. He had already reported a case of unfair labour practice by the appellant alleging material variation of his contract, repudiation of the employment contract, and non-payment of benefits and arrears. In due course, the Labour Officer issued a Certificate of No Settlement. Resultantly, the dispute was referred to arbitration.

The arbitrator found in favour of the respondent. In the arbitral award, issued on 18 July 2017, the arbitrator found that the appellant was the respondent's employer.

He found that the employment contract had been unlawfully terminated and that there had been a unilateral variation of its terms. Reinstatement, or damages in lieu of it were ordered in the event that reinstatement was no longer possible. The arbitrator also ordered the appellant to pay damages for contractual breaches in the sum of US$29,686=39 for profit share and reimbursement of US$1,200 in school fees.

The appellant was aggrieved and took to the Labour Court on appeal.

The appellant contended that the respondent's failure to report for duty, as directed, amounted to a repudiation of the contract of employment and that there was no unilateral variation of the contract on its part.

It was the court a quo's finding that the appellant unlawfully terminated the employment contract which it had unilaterally varied. The fact that no disciplinary hearing was conducted violated the respondent's right to be heard. The appeal was dismissed.

It is against that judgment of the court a quo that this appeal was lodged.

GROUNDS OF APPEAL

The appellant raised the following grounds of appeal;

1. The court a quo (erred) in not finding that the respondent had sued the wrong party as his employer, and, accordingly, that the arbitrator had, in not finding that Triple C (Private) Limited was the respondent's employer, committed an error in law.

2. The court a quo erred in coming to the conclusion that there had been an unlawful variation of the terms of the respondent's contract of employment and so erred in not considering the circumstances under which he had been transferred and also the fact that an employment relationship cannot remain static.

3. The court a quo erred in not coming to the conclusion that the respondent had, by not reporting for duty after his transfer, repudiated his employment and that the acceptance of such repudiation by the employer did not constitute unfair dismissal.

4. A fortiori the court a quo erred in coming to the conclusion that the appellant ought to have brought disciplinary proceedings against the respondent.

At the commencement of the hearing of the appeal, counsel for the appellant abandoned the first ground of appeal. He indicated that he would motivate the appeal on the basis of the remaining three grounds. Accordingly, the first ground is struck out and will not be related to in this judgment.

ISSUE FOR DETERMINATION

While there are still three grounds of appeal, they all dovetail to only one issue for determination in this appeal. It is whether or not the respondent's contract of employment was lawfully terminated.

SUBMISSIONS ON APPEAL

Counsel for the appellant submitted that the respondent's employment was lawfully terminated on notice after he refused to assume duty at Triple C (Private) Limited. He submitted that there is a distinction between a dismissal from employment which follows disciplinary proceedings and a termination of employment on notice. Both, the court a quo and the arbitrator, so the argument goes, fell into grave error in making a finding that the appellant was required to institute disciplinary proceedings against the respondent before terminating his employment.

It was further argued, on behalf of the appellant, that the offer to employ the respondent at Triple C (Private) Limited came in the context of retrenchment proceedings which were ongoing at the time.

Indeed, according to the minutes of a meeting held by the parties on 25 March 2013 to negotiate a retrenchment package, it is the respondent himself who made a proposal “to be given right of first refusal of new jobs if they arise.” The respondent had made the request because, according to him, “there (were) no jobs out there.” When the Finance Manager of Triple C (Private) Limited resigned, an opportunity presented itself to avoid retrenching the respondent by offering him the job as requested.

According to the appellant, the respondent accepted the offer of the job, albeit under protest. His concerns were still being looked into but he was expected to report for duty. He refused to do so preferring to remain idle. Counsel for the appellant submitted that the stance taken by the respondent left the appellant in a quandary because it had nowhere else to deploy him. It was the intransigence of the respondent, in continuing to report at his former station where there was no work to be performed, which invited the termination of his contract of employment on notice. Counsel for the appellant maintained that the appellant was entitled, at law, to terminate the employment on notice. He placed reliance on a number of authorities to make that submission.

Counsel for the respondent took the view that there are two issues that are dispositive of the appeal;

(a) The first one is whether or not the appellant unilaterally varied the employment contract.

In that regard he made reference to the letter of transfer dated 21 May 2013 which made it clear that the transfer was a lateral one. This meant that the respondent would continue to enjoy the same benefits he enjoyed prior to being transferred.

The view taken by the respondent is that the appellant tinkered with the conditions of his employment thereby repudiating it.

(b) The second one is whether the subsequent termination was lawful.

In that regard, the court a quo correctly found that the employment contract was unlawfully or unfairly terminated. In fact, the court a quo was of the view that a disciplinary hearing should have been conducted in terms of the appellant's Code of Conduct. In arriving at that position the court a quo relied on section 12B(1) of the Labour Act [Chapter 28:01] which provides that an employee is unfairly dismissed if the employer fails to show that he, she, or it dismissed the employee in terms of an employment Code.

ANALYSIS

It is common cause that no disciplinary proceedings were instituted against the respondent and that he was not charged with any act of misconduct for which he could be dismissed from employment. It is also common cause that when the parties reached a deadlock about the respondent assuming duty at a new base, to which he had been transferred, the appellant served him with a notice of termination of employment.

The issue for determination is the lawfulness of that course of action.

In considering the lawfulness of the appellant's actions, it is important to start from the standpoint that upon the respondent being transferred to Triple C (Private) Limited, he signed the letter of appointment on the space provided for “acceptance of new contract.” He then registered his concerns with the appellant as he was entitled to do. The respondent also went on to report a dispute to a Labour Officer. This was also proper and the dispute would have been dealt with according to the law.

His biggest undoing was the dogged refusal to report for duty assigned to him. It meant that the parties could not contractually move forward together.

The appellant did not opt to charge the respondent with misconduct and certainly did not dismiss him for misconduct.

I agree with counsel for the appellant that termination of employment does not amount to dismissal all the time and that while dismissal results in termination of employment there may be termination without dismissal.

Dismissal ordinarily arises from disciplinary proceedings while termination may be done on notice.

Indeed, section 12 of the Labour Act [Chapter 28:01] deals with “Duration, particulars and termination of employment contract” while, on the other hand, section 12B is on “Dismissal.” That, on its own means a lot. The two sections provide for two different methods of bringing an employment contract to an end. The first method is through termination while the second is through dismissal.

It is now settled in our jurisdiction that, despite the provisions of section 12B of the Labour Act [Chapter 28:01] dealing with dismissal of an employee from employment in terms of an employment Code of Conduct, an employer retains the right to terminate employment on notice as provided for under the common law. Section 12B of the Labour Act does not concern itself with the general termination of employment by means other than in terms of a Code of Conduct be it an employer's Code of Conduct or the national Code of Conduct.

It is section 12(4) of the Labour Act [Chapter 28:01] which deals with the concept of termination of employment on notice.

It regulates the period of notice to be given for such termination. In Chirasasa v Nhamo N.O. and Anor 2003 (2) ZLR 206 (S), the court upheld the termination of employment where the parties had failed to agree on new conditions of employment. It was stated:

“In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calender months' notice and could exercise it without obtaining prior written approval of the Minister.”

The above reasoning was followed by this Court in Colcom Foods Limited v Kabasa SC12-04 where the following passage appears:

“In this case, it was conceded that there was no allegation of misconduct levelled against Kabasa. He was not being retrenched. It was his refusal to accept that his status was that of Human Resources Manager that caused the decision to terminate his employment with Colcom on notice. On the authority of Chirasasa's case supra, Colcom was entitled to terminate Kabasa's employment on notice.”

The court went on to state, in that case, that, as it was not an act of misconduct for the employee to refuse to accept the change in his conditions of service, the employer was not bound to terminate his employment in terms of the disciplinary procedure laid down in the employment Code of Conduct.

On the basis of that authority, it is clear that the court a quo was wrong in drawing the conclusion that the appellant should have conducted a disciplinary hearing following the respondent's refusal to report for duty. There was no need to proceed in terms of a Code of Conduct.

Quite recently, in the case of Nyamande and Anor v Zuva Petroleum (Private) Limited 2015 (2) ZLR 186 (S), this Court reiterated the correctness of the assertion that an employer has the right to terminate employment on notice. CHIDYAUSIKU CJ endorsed it in these words…,-

“The respondent appealed to the Labour Court. The Labour Court allowed the appeal. In its judgment, the Labour Court had this to say:

'In my view, therefore, the submission that section 12B came to do away with the possibility of terminating a contract of employment on notice is a misunderstanding of the law as it stands. In an event, the provisions of section 12(4) of the Act are clear and allow no ambiguity as also the provisions of section 12B. None of the sections have the effect of doing away with the termination of a contract of employment on notice.'

In essence, the Labour Court came to the conclusion that neither section 12B nor section 12(4) of the Act abolished the employer's right to terminate employment on notice. I respectfully agree with this conclusion.”

The learned Chief Justice went on, at p190 A-B, to make the following pronouncement:

“As I have already stated, it is common cause that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. That common law right, in respect of both the employer and the employee, can only be limited, abolished, or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament. I am satisfied that section 12B of the Act does not abolish the employer's common law right to terminate employment on notice in terms of an employment contract for a number of reasons.”

Having come to the conclusion that the appellant was entitled to terminate the employment without invoking the employment Code of Conduct, by giving the respondent notice of termination, it becomes superfluous to relate to the issue of the alleged variation of the terms and conditions of employment.

The authorities I have cited make it clear that a deadlock in negotiations over new terms of employment may entitle the employer to terminate on notice. See Colcom Foods Limited v Kabasa SC12-04.

I have said that the respondent shot himself in the foot by refusing to comply with transfer instructions - especially after he had accepted a new contract by signing it. If he was aggrieved by what he regarded as a unilateral alteration of his contract, he should have pursued his grievance while reporting for duty. By his intransigence he opened himself up for termination on notice.

On the other hand, the appellant had a lawful right to abandon discussions with the respondent and opt for termination on notice. There was no requirement for a disciplinary hearing because it was not an act of misconduct for the respondent to refuse to take up the new employment.

The judgment of the court a quo is wrong. It ignores all the rich authorities on the subject of termination on notice. It ought to be vacated.

Regarding the issue of costs, I see no reason why the costs should not follow the result.

In the result, it is ordered that:

1. The appeal succeeds with costs.

2. The judgment of the court a quo be and is hereby set aside and in its place be substituted the following:

“The appeal is hereby allowed and the arbitral award set aside with costs.”

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

The test for determining the repudiation of a contract by way of anticipatory breach was expounded by NIENEBAR JA in Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (1) SA 581 (A)…, as follows:

“…, the emphasis is not on the repudiating party's state of mind, on what he subjectively intended, but on what someone in the position of the innocent party would think he intended to do; repudiation is, accordingly, not a matter of intention, it is a matter of perception.

The perception is that of a reasonable person placed in the position of the aggrieved party. The test is whether such a notional reasonable person would conclude that proper performance (in accordance with a true interpretation of the agreement) will not be forthcoming. The inferred intention accordingly serves as the criterion for determining the nature of the threatened actual breach.

…, due to the co-contractant's repudiation, the innocent contractant is excused from any steps that he must take in preparation for his own performance…,. In these circumstances, the purchaser will not fall into mora by failing to tender performance…, as long as he signifies his willingness to perform.”

Similarly, LORD WRIGHT, cited with approval in Chinyerere v Fraser N.O. 1994 (2) ZLR 234 (H)…, observed as follows in Ross T. Smyth & Co. Ltd v T.D. Bailey, Son & Co. [1940] 3 All ER 60 (HL)…,.:

“I do not say that it is necessary to show that the party alleged to have repudiated should have an actual intention not to fulfil the contract. He may intend in fact to fulfil it, but, may be determined to do so only in a manner substantially inconsistent with his obligations, and in no other way.”...,.

At common law, an anticipatory breach ordinarily entitles the innocent contractant to cancel the contract. As is observed by KERR: The Principles of Contract Law (6th ed.)…,.:

“…, repudiation before the due date for performance by a party prospectively in default constitutes anticipatory breach of contract on which the aggrieved party may take action if he so elects.”

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”...,.

WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?

In the fourth ground of appeal, it is submitted that the Labour Court erred in holding that the Memorandum of Agreement (MOA) was binding on Vimbai, and ignored the fact that it was signed under duress.

However, this ground of appeal was not dealt with in the heads of argument filed on behalf of Vimbai. Nevertheless, I will deal with it.

The issue raised in this ground of appeal is whether the Memorandum of Agreement (MOA) was signed under duress.

As already stated, both Makoni and Vimbai gave evidence before the arbitrator and were cross-examined. After consideration of that evidence, the arbitrator said the following:

“In one way or the other, after the dismissal of the claimant, the parties contacted each other, resulting in the claimant and Mr Makoni (from Sheraton) meeting to 'finalise' the matter. At this penultimate meeting, the employer presented a document that would put the matter to rest. The claimant knew that if he continued to challenge his dismissal, he would get nothing from the employer. He therefore pretended to be accepting his terminal benefits, but requested that they be split into two parts, with the first part incorporating largely the January salary and (the) other part the rest of the other terminal benefits.

The claimant then wrote “U.P.” after his signature to signify that he was accepting the benefits 'Under Pressure'.

This was not explained to the employer.

The employer acknowledges that he (it?) was not aware that the claimant had signed the document under pressure.

The claimant hoodwinked the employer into believing that he was consenting to the termination of employment and to the acceptance of terminal benefits. This was done with the sole aim of accessing the January salary.

The claimant's conduct is deplorable.

He was understandably desperate for cash but he used unorthodox methods to get what he wanted.

He lied that he was accepting the benefits of his own free will, and that his acceptance was in full and final settlement of (the) claims that he had against the respondent.

No wonder the respondent's agent kept referring to him as a trickster.

Had it not been for my findings regarding the Memorandum of Agreement (MOA) I would have ruled that the claimant be bound by (his) signature, never mind the invented 'U.P'.”

It is quite clear, from what the arbitrator said, that, he was satisfied that Vimbai had not signed the Memorandum of Agreement (MOA) under duress.

The Labour Court was of the same view and said the following:

“It may very well be true that he was under financial pressure which forced him to accept a deal that he did not like. But, the fact remains that he need not have accepted the deal. It is not like his will was overborne by (the) appellant's to the extent that he had no choice in the matter. He had a choice. He could have rejected the whole deal and pursued other remedies. The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The finding by the Labour Court, that Vimbai did not sign the Memorandum of Agreement (MOA) under duress, is a finding of fact, which is not appealable unless it can be said to be irrational in the sense set out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, where this Court said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

In the present case, I am not prepared to say, that, having regard to the evidence placed before the arbitrator and the Labour Court the finding complained of is irrational in the sense set out above.

Consequently, the finding that Vimbai did not sign the Memorandum of Agreement (MOA) under duress is not appealable, and the fourth ground of appeal, therefore, falls away.

In my view, the Labour Court correctly determined the matter.

The Memorandum of Agreement (MOA) was a declaration by Vimbai that the dispute between him and the Hotel had been settled on the terms and conditions set out in the Memorandum of Agreement (MOA).

That conclusion is logically consistent with what happened in this case before 25 January 2005.

Vimbai was dismissed by the Hotel. He reported the matter to the Union and a labour dispute ensued. Negotiations aimed at settling the dispute commenced between the Union and the Hotel. The Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected the proposal. As he badly needed some money, Vimbai went to the Hotel, on 25 January 2005, and signed the Memorandum of Agreement (MOA), declaring that the
labour dispute had been settled on the terms and conditions set out therein.

In my view, that declaration is binding on him.

In the circumstances, the appeal is dismissed with costs.

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

The applicant was employed as the Chief Executive Officer (CEO) of the sixth respondent. The sixth respondent is Net One Cellular (Pvt) Ltd, a licensed provider of mobile and related telecommunications services in Zimbabwe. The first to fifth respondents are its directors.

Following a Board meeting held on 20 February 2020, a special resolution to suspend the applicant as Chief Executive Officer was passed. The applicant successfully obtained an interim court order suspending that resolution.

On 9 July 2020, the sixth respondent's Board of Directors wrote a letter to the applicant advising him that his suspension pending disciplinary hearing had been withdrawn and that he was now reinstated as Chief Executive Officer with no loss of salary or benefits.

In less than 24 hours of reinstatement, a letter terminating the applicant's employment on three months' notice was written by the same Board members of the sixth respondent and was delivered to the applicant.

Again, the applicant successfully obtained an interim court order on 15 July 2020, under case number HC3611/20, suspending the effectiveness of the letter of termination pending the hearing of the matter and its final determination on 4 August 2020.

The interim order has not yet been confirmed or discharged. Judgment is still pending in this court.

That notwithstanding, the first respondent, on behalf of the sixth respondent, wrote a letter to the applicant, on 21 December 2020, withdrawing the letter of termination of contract of 9 July 2020 and reinstating him as Chief Executive Officer. On the same date, but in a different letter, the first respondent wrote to the applicant again terminating his employment contract on three months' notice with immediate effect.

The applicant was advised that the President of the Republic of Zimbabwe had given his endorsement for his removal from office of Chief Executive Officer of the sixth respondent. The applicant was further advised that he would be paid in lieu of the three months' notice as his services were no longer required.

It is this letter which prompted the applicant to file the present urgent chamber application.

It is the applicant's averment that the letter of termination of his employment contract is illegal as his contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.

Furthermore, there is an interim court order by CHINAMORA J barring the respondents from giving effect to a similar letter which sought to terminate his contract of employment on notice.

In this application, the applicant is seeking, as against the respondents, a prohibitory interdict in the interim and a declaratur on the return day. The reliefs are couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the letter dated 21 December 2020, authored by the 1st respondent, purportedly for and on behalf of the 6th respondent, addressed to the applicant, be and is hereby declared null and void.

2. Any processes taken pursuant to the said letter be and are hereby declared null and void.

3. That, any respondent(s) opposed to the granting of the Final Order be ordered to pay costs, jointly and severally, the one paying the others to absolved on a legal practitioner-client scale.

INTERIM RELIEF GRANTED

Pending the confirmation of the Provisional Order, the applicant be and is hereby granted the following relief:

1. That, the effect of the letter dated 21 December 29020, drafted by the 1st respondent for and on behalf of the board directors of the 6th respondent, be and is hereby suspended as well as any further processes taken in furthering its objects.

2. The respondents be and are hereby interdicted from publishing the illegal dismissal of/or termination of the applicant's contract of employment in terms of section 11(2) of the Public Entities Corporate Governance (General Regulations S.I.168 of 2018) and further interdicted from advertising applicant position in terms of section 8 of the same Statutory Instrument.

3. That, the respondents be interdicted from terminating the applicant's employment contract pending the final determination of this matter and case number HC3611/20.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the respondents or their legal practitioners by the applicant's legal practitioners.”

In short, in the interim, the applicant wants the respondents barred from terminating his employment contract pending the return date. He also wants the respondents barred from publishing his dismissal or termination of his employment contract and advertising his position. On the return date, the applicant will be seeking a declaratur that the letter of 21 December 2020, terminating his employment contract, is a nullity.

In response to the application, the respondents raised some points in limine which I deal with hereunder.

Lack of Jurisdiction

The respondents averred that this is a labour matter wherein the applicant is effectively seeking an order setting aside the termination of his employment contract on notice on 21 December 2020. The respondents contended, that, the applicant should challenge the termination thereof in terms of the Labour Act [Chapter 28:01]. The applicant ought to approach a labour officer who should determine whether or not there is need to follow due process when terminating an employment contract on notice. The ruling should thereafter be submitted to the Labour Court for confirmation or discharge in terms of the provisions of Amendment Act No.5 of 2015.

The Labour Court is set up as a specialist court to deal with employment matters in terms of section 172 of the Constitution.

This court has no jurisdiction to determine the applicant's complaint that his contract was terminated without regard to due process. This court has no inherent jurisdiction to deal with purely employment matters; its jurisdiction having been restricted by the Constitution which created the Labour Court as a specialist court to handle employment matters.

Counsel for the respondents submitted, that, in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 it was clarified that the High Court does not have jurisdiction to deal with labour matters. He referred to paragraph 47 of the judgment. It reads;

“On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe. The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.”

Counsel for the respondents argued, that, in casu, the applicant is claiming that he was unlawfully dismissed.

Referring to paragraph 42 of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, he submitted that the procedure for dealing with an unfair labour practice is to be found in section 93(5) of the Labour Act. Paragraph 42 provides:

“The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act. The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration or that failing, proceed in terms of section 93(5) of the Labour Act.”

In response, counsel for the applicant submitted that Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the judgment that the respondents seek to rely on, is not applicable to the present matter. The circumstances are different.

He submitted that whilst in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 the appellant had approached this court for an order that he be paid monies that were due to him arising out of his employment contract; in casu, the applicant is seeking an interdict, a prohibitory interdict to be specific. He makes that clear in paragraph 5 of his founding affidavit. The Labour Court cannot grant that relief. It has no jurisdiction to grant interdicts whereas the High Court has jurisdiction to grant such.

Counsel for the applicant further submitted that in any case the Labour Act is not the applicable statute in the applicant's case, but the Public Entities Corporate Governance Act [Chapter 10:31] and its General Regulations.

He submitted that this is in terms of Chapter 9, and more specifically section 197 of the Constitution of Zimbabwe (Amendment Act No.20) 2013 which provides for terms of office of heads of Government-controlled entities. Section 197 of the Constitution reads;

“An Act of Parliament may limit the terms of office of chief executive officers or heads of government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.”

Counsel for the applicant submitted that the Act of Parliament being referred to in section 197 of the Constitution is the Public Entities Corporate Governance Act, and not the Labour Act.

He submitted that section 16 of the Public Entities Corporate Governance Act is the provision which deals with the termination of the term of office of the head of a State-controlled commercial entity.

Counsel for the applicant further submitted that Chapter 9 of the Constitution and the Public Entities Corporate Governance Act do not prohibit the High Court from exercising jurisdiction in a matter such as the present one.

He further submitted that a reading of section 3(1) of the Labour Act shows that the Labour Act is not applicable to the applicant who is governed by section 197 of the Constitution. It was his argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197.

To begin with, it is pertinent to point out that counsel for the respondents did not dispute that the Public Entities Corporate Governance Act is the Act that was enacted to provide for the governance of public entities in compliance with Chapter 9 of the Constitution and in terms of section 197 thereof.

To resolve the issue of whether or not this court has jurisdiction in this matter, it is necessary to examine the provisions of section 3 of the Labour Act which deals with the application of the Act. It provides;

“(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of —

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) Such other employees of the State as the President may designate by statutory instrument.”

In City of Gweru v Richard Masinire SC56-18 BHUNU JA interpreted this provision.

He stated that it confers jurisdiction of the Act over all employees except those it expressly excludes; and those that are expressly excluded are:

1. Those whose conditions of employment are otherwise provided for in the Constitution.

2. Members of the Public Service.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a Statutory Instrument.

In casu, I do not believe that the applicant falls in any one of the excluded categories.

I am not in agreement with counsel for the applicant's argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197 of the Constitution. Rather, I am in agreement with counsel for the respondents argument that the applicant's conditions of service are not found in the Constitution, but in an Act of Parliament, the Public Entity Corporate Governance Act which was enacted in compliance with Chapter 9 of the Constitution, which chapter includes section 197.

One of the purposes of the Public Entity Corporate Governance Act, as can be seen from its preamble, is to provide a uniform mechanism for regulating the conditions of service of members of public entities and their senior employees.

Section 197 of the Constitution does not provide any conditions of service for employees of Government controlled entities. It simply says that An Act of Parliament may limit the terms of office of Chief Executive Officers or Heads of Government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.

Surely, this provision cannot, by any stretch of the imagination, be interpreted as providing conditions of service.

Clearly, the applicant does not fall within the category of employees that are excluded by section 3 of the Labour Act [Chapter 28:01]. The Labour Act is therefore applicable to him.

In the letter of termination of the applicant's employment contract, dated 21 December 2020, it is not indicated in terms of which law (whether the Labour Act or the Public Entities Corporate Governance Act) the employment contract was terminated.

The letter is silent.

However, the letter of termination of 9 July 2020, although it was subsequently withdrawn, made it clear that termination had been made in terms of section 12(4) of the Labour Act. On the other hand, the applicant avers that his contract of employment, as read together with section 16 of the Public Entities Corporate Governance Act, which provision provides for the dismissal of Chief Executive Officers, does not provide for the termination of his employment contract on notice.

The point that the applicant was making here was that his employment contract was terminated in terms of the Public Entities Corporate Governance Act which has no provision for the giving of notice.

I will not be drawn into making a determination of whether or not the notice was lawfully given. That is not the issue before me.

The issue that is before me is simply whether or not this is an employment matter which should be determined in terms of Labour Law.

If it is a labour or employment matter, I will decline jurisdiction on the basis of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 that I have already referred to above.

It was counsel for the applicant's further argument, that, even if the Labour Act is applicable to the applicant, this court has jurisdiction to deal with the present application because the applicant is seeking an interdict which only the High Court, and not the Labour Court, can grant.

As was correctly argued by counsel for the respondents, in deciding what relief an applicant is seeking, the court must look at the grounds of the application and the evidence adduced in support of the order prayed for; see Cainos Chingombe & Another v City of Harare SC177-20…,.

The fact that the applicant is seeking a particular relief is not itself decisive. In other words, what is important, or what matters, are the grounds on which the application is based rather that the order or relief that is being sought. Regard should be had to the substance of the application and the averments contained therein instead of the relief that is being sought.

The relief being sought cannot be the sole decider of whether or not a matter is properly before the Court. The decider is the dispute that has been placed for adjudication before the court.

In casu, in paragraph 5 of the founding affidavit, the applicant outlined the purpose of his application. He averred that he is seeking a prohibitory interdict and ancillary relief to the effect that the purported letter of dismissal be declared null and void. From paragraphs 16 to 18 he outlined what he termed “the complaint.”

In paragraph 16 he averred, that, “the letter of termination is illegal and has no force of law in that the applicant's contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.”

In paragraph 18, he averred, that, “the letter of termination…, is illegal and contemptuous in that it seeks to circumvent an extant interim court order…, of this Honourable Court under case number HC3611/2020…,.”

In the subsequent paragraphs, the applicant went on to make averments which deal with the requirements of an interdict.

In paragraph 19, he averred that he has a clear right to lawful process by the respondents which right was wantonly violated. On irreparable harm, he averred, that, in terms of his contract as read together with the Public Entities Corporate Governance General Regulations he cannot be dismissed on notice as purported in the letter of termination.

He further averred that assuming that the President gave his endorsement, the decision to dismiss him was illegal, arbitrary, and an affront to the laws of natural justice in that he was never invited to make any representations.

He averred, that, most importantly, the essential processes to terminate his contract were not compiled with.

He averred that he has rights in terms of the interim court order which interdicts the respondents from terminating his contract on notice.

He averred that he stands to suffer irreparable prejudice by the unlawful process.

What is clear from the applicant's averments is that although he avers that he is seeking an interdict, he is basically challenging termination of his employment contract by way of notice, a way which he says is not provided for in his employment contract and in the General Regulations of the Public Entities Corporate Governance Act.

He is challenging the legality of the termination process.

He says it was unlawful, hence his request for a declaratur that the letter of termination, and any processes taken pursuant to the said letter, are null and void.

I take the view that this is a dispute that relates to the employment relationship between the applicant and the sixth respondent. The dispute is whether or not the applicant's employment contract was lawfully terminated.

Such a dispute falls for determination in terms of labour law under the Labour Act and its structures.

Section 2A of the Labour Act spells out the purpose of the Act as follows:

“2A(1) The purpose of this Act is to advance social justice and democracy in the workplace by —

(a) Giving effect to the fundamental rights of employees provided for under Part II;

(b)…,. [Paragraph repealed by section 3 of Act 7 of 2005]

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the work place;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.”

Section 2A(1)(f) of the Labour Act is pertinent. It seeks to secure a just, effective and expeditious resolution of employment disputes and unfair labour practices.

In terms of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the High Court has no jurisdiction in labour and employment issues. Clearly this is not a matter for an interdict and a declaratur.

Under the guise of seeking an interdict and a declaratur, the applicant is actually challenging the termination of his employment contract and seeking reinstatement as Chief Executive Officer (CEO) of the sixth respondent through the back door.

In view of the foregoing, I come to the conclusion that I have no jurisdiction to deal with this matter which is an employment matter.

In the result, it be and is hereby ordered that:

1. Jurisdiction is declined.

2. The applicant shall pay the respondents' costs.

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...

FACTUAL BACKGROUND

The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013.

After the expiry of their contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones.

The respondents signed the new contract which effectively regularised their employment in retrospect for the period of 1 May 2013 to 30 April 2015.

Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then offered them one-year fixed term contracts. The proposed contracts had a two-months probation clause and other less favourable conditions.

The respondents rejected the appellant's offer.

The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.

Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant's Works Council.

The Works Council upheld the decision by the appellant's Human Resources department to offer the appellants one year contracts after the expiry of the two year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which had different terms and conditions from the expired contracts.

The Work's Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.

Thereafter, the respondents appealed to the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC).

They submitted, that, in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted, there was no basis for the new contracts as there had been tacit renewal. They also averred, that, the alleged negotiations were inconsequential as they ensued after the tacit renewal.

In response, the appellant submitted, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer could not be inferred to mean there was tacit renewal.

It did not intend to renew the two year contracts.

The National Employment Council - Tobacco Grievance and Disciplinary Committee ruled in favour of the respondents.

It held, that, tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents' contracts before their termination and that the respondents were engaged on the same terms and conditions as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.

Aggrieved by this decision, the appellant appealed to the Labour Court (the court a quo) on the ground, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts.

It argued, that, where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period.

The appellant submitted, that, tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.

To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015 notwithstanding that their contracts expired on 30 April 2015.

They also emphasized that the parties did not agree on a new arrangement.

The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.

DETERMINATION OF THE COURT A QUO

The court dealt with the issue of whether or not the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) erred in finding that the contracts of employment had been tacitly relocated.

In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court a quo found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015.

It reasoned, that, the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.

The court a quo also had regard to the precedent that the appellant did not immediately terminate or renew the respondent's contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts.

It reasoned, that, had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention.

The court accordingly concluded, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee's decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered, within two months of the expiry of respondent's contracts, the court a quo erred in finding notwithstanding those agreed facts, that the old contracts had been relocated.

2. The court a quo erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the quasi-mutual assent.

3. The court a quo erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (sic)

4. Respondents, having rejected the terms of the contract offered by appellant, the court a quo erred in concluding that respondents had a contract to enforce.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, counsel for the appellant submitted that the court a quo asked itself the wrong question, and, ultimately, gave itself the wrong answer.

The wrong question was whether it had been shown that there had been negotiations between the parties from 1 May 2015 to 22 June 2015, and, if not, what the effect of the absence of negotiations, during that period, would be.

The court a quo's ratio was that, upon the expiry of the contract, they only engaged in negotiations after a period of six weeks: because of that silence, there was tacit relocation of the contract.

He contended, that, the real dispute between the parties was not that the respondents' contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts.

Counsel for the appellant submitted, that, the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.

Counsel for the appellant further contended, that, a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant's intention.

The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts.

The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated.

To confirm the appellant's position some of the employees signed the one-year contracts.

He concluded by saying that tacit relocation cannot be inferred from the facts of this matter.

On being asked the date when the negotiations started, he was unable to pinpoint a date.

He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated.

He further submitted, that, the fact that the parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of Justin Kwangwari v Commercial Bank of Zimbabwe HH79-03.

He submitted, that, there is no period set in our law between the expiry of a fixed term contract and the conclusion of a new one for it to be held that there was tacit relocation. He urged the court to consider all the facts holistically in order to draw inferences consistent with the proven facts.

On being asked what would be the status of the employees in the seven (7) weeks, before the offer, he submitted that the status was determined by the new contract.

Counsel for the respondents submitted, that, the facts of the matter point to tacit relocation.

He indicated that the root of the dispute lies in the determination of the respondents' employment status in the seven (7) week period.

Accordingly, he referred to section 12(1) of the Labour Act [Chapter 28:01] (the Act) for the proposition that the legislature envisaged the existence of 'deemed contracts' in respect of an employee who works for an employer and is receiving or entitled to receive any remuneration notwithstanding that such contract has not been reduced to writing.

He also referred to section 12(2) of the Labour Act, which, so he argues, demands mandatory compliance by the employer to inform the employee, in writing, the period in terms of which they are engaged and section 12(3)(a) of the Labour Act which provides that where a contract does not specify its duration or date of termination, it is deemed to be one without a limit of time.

As such, he argued, the legislature sought to protect employees from unscrupulous employers who have more bargaining power than the employees.

He emphasized, that, there was tacit relocation in that the respondents reported for work and were remunerated under the old contracts.

He further indicated that the respondents' concerns did not only relate to their disgruntlement with the new offer but also spoke to the issue of tacit relocation.

He further submitted, that, the appellant's offer of new contracts of employment was immaterial to the concept of tacit relocation.

Additionally, he stated that the one-year contracts offered by the appellant were unjust, unfair, and violated the respondents' right to fair and safe labour practices and standards provided for in section 65 of the Constitution of Zimbabwe, 2013.

In rebuttal, counsel for the appellant submitted that there can be a delay after the expiry of the contract and the delay does not amount to relocation.

It would be wrong to say once there is a delay then section 12 of the Labour Act is the answer.

He submitted that section 12 uses “shall” in a directory sense and not in a peremptory manner. Failure to comply with it does not render conduct void.

He concluded by saying that section 12 of the Labour Act is what the employer was complying with in the seven (7) weeks.

ISSUE FOR DETERMINATION

From a consideration of the grounds of appeal raised and the submissions made, one issue falls for determination which is:

Whether or not the court a quo erred in finding that the contracts of employment in question had been tacitly relocated.

A reading of the record reflects that the ratio of the court a quo's ruling was that the respondents' continued rendering of services from 1 May 2015 to 22 June 2015 in terms of the expired contracts constituted tacit relocation of the contracts by the appellant.

That tacit relocation was at the centre of the parties' dispute is also evidenced in the way the matter progressed before the various fora. This will be shown by a perusal of the minutes of the appeal hearing of 26 October 2015 before the Work's Council to the respondents' appeal before the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC Committee) and the subsequent proceedings in the court a quo.

THE LAW

It is settled law that a fixed-term contract of employment automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination: see ZIMRA v Mudzimuwaona SC04-18.

However, in certain instances, despite the expiry of the period of employment, the employer-employee relationship may be found to exist owing to the parties' conduct under the concept of tacit relocation.

Tacit relocation, as it applies to contracts of employment, entails that where an employee's fixed term contract expires without renewal and the employee continues to render his services to the employer with the employer paying the previously agreed remuneration, the expired contract is deemed to be relocated. Therefore, the employee is deemed to be employed on the same terms and conditions as the previous contract.

In Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126…, the court made the following pertinent remarks regarding the principle of tacit relocation;

“Finally, the best that can be said for the applicant is that in certain cases, akin to the present, there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period, without agreeing new terms, there is a tacit relocation of the expired contract on the same terms and for the same duration.

In other words, all things being equal, it could be said that on 1 October 1999, the applicant commenced a new probationary period.

However, this presumption does not operate when it is clear that one of the parties has no intention of continuing on the terms of the expired contract: see Lilford v Black 1943 SR 46 at 47, where BLAKEWAY J said:

'The renewal of a lease or of a contract for services to be performed can take place either by express agreement or tacitly. If, after the expiration of the period provided for the duration of the contract, the parties continue their relationship without any fresh agreement the law presumes, in the absence of indications to the contrary, that they have agreed to enter upon a new lease on the same terms as the expired lease. But, this presumption does not operate when it is clear that the parties, or one of them, does not intend to carry on with the contract on the old terms.'” …,.

JOHN GROGAN in his book “Workplace Law” 8th ed…, states the following:

“If, after the agreed date for the termination of the contract, the employee remains in service and the employer continues to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that an intention to renew is consistent with the parties' conduct. The relocated contract will continue on exactly the same terms and conditions as the previous fixed-term contract, except that the duration of the contract need not be the same as that of the original contract; the life of the relocated contract must be determined in light of the particular circumstances of each case.”…,.

In Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC & Ors 2002 (1) SA 822 (SCA)…, the court held:

“After the termination of the initial agreement, and prior to this letter, the parties (in the light of the facts recited) conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.

Taken together, those facts establish a tacit relocation of a franchise agreement (comparable to a tacit relocation of a lease) between the appellant and Sirad (Shell South Africa (Pty) Ltd v Bezuidenhout and Others 1978 (3) SA 981 (N) 984B-E).

A tacit relocation of an agreement is a new agreement and not a continuation of the old agreement (Fiat SA v Kolbe Motors 1975 (2) SA 129 (O) 139D-E; Shell 985B-C).

The fact that the appellant had forgotten that the agreement had lapsed is beside the point because in determining whether a tacit contract was concluded a court has regard to the external manifestations and not the subjective workings of minds (Fiat SA 138H-139D).”…,.

The principle that can be drawn from the cited authorities is that an inference of tacit relocation is dependent upon the continued existence of an employer-employee relationship after the expiration of the contract. The employee will continue rendering his services to the employer who, in turn, pays remuneration in terms of the expired contract.

Tacit relocation is based on the intention of the parties which must be consistent with their conduct. The court, in determining such an issue, considers all the facts holistically as it draws inferences which are consistent with the proved facts.

The principle of tacit relocation of contracts of employment appears to be embodied in statute, in particular section 12 of the Labour Court Act [Chapter 28:01] which provides:

“12 Duration, particulars and termination of employment contract

(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

(2) An employer shall, upon engagement of an employee, inform the employee, in writing, of the following particulars —

(a) The name and address of the employer;

(b) The period of time, if limited, for which the employee is engaged;

(c) The terms of probation, if any;

(d) The terms of any employment code;

(e) Particulars of the employee's remuneration, its manner of calculation, and the intervals at which it will be paid;

(f) Particulars of the benefits receivable in the event of sickness or pregnancy;

(g) Hours of work;

(h) Particulars of any bonus or incentive production scheme;

(i) Particulars of vacation leave and vacation pay;

(j) Particulars of any other benefits provided under the contract of employment.

(3) A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time:

Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.

(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is —

(a) Fixed by the appropriate employment council; or

(b) Prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who are engaged without limit of time.”

Section 12(2) of the Labour Act has been interpreted to merely impose an obligation on the employer to supply the information and does not require the parties to sign a written contract: see Rumbles v Kwa Bat Marketing (Pty) Ltd (2003) 8 BLLR 811 LC.

The statement of particulars is not the contract itself nor is it even conclusive evidence of the contract: see L. MADHUKU, Labour Law in Zimbabwe, 2015…,.

However, a proper construction of section 12(1) of the Labour Act yields the result, that, where an employee renders services in return for remuneration, a contract of employment exists notwithstanding that such a contract has not been reduced to writing.

Tacit relocation is therefore presumed.

This is made clearer by the provisions of section 12(3a) of the Labour Act which states, that, a fixed term contract shall be deemed to be a contract without limit of time upon the expiry of such period of continuous service.

APPLICATION OF THE LAW TO THE FACTS

A determination of whether a written contract was automatically renewed in accordance with the principle of tacit relocation is a question of fact which has to be answered after an analysis of the particular facts and circumstances of each case: see Sun International (South Africa) Ltd v Crocodile Enterprises [2014] ZANWHC 52.

In casu, it is not in dispute that the parties' relationship was governed by a written contract of employment which terminated by effluxion of time on 30 April 2015. As at that date, the respondents would have ceased to be the appellant's employees.

However, the appellant allowed the respondents to continue working on the old terms and conditions of their contracts until 22 June 2015 when it then offered the respondents one-year contracts with less favourable conditions.

It can be reasonably inferred from this conduct of the parties that a new contract had come into existence by the principle of tacit relocation.

Applying the dicta in Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC & Ors 2002 (1) SA 822 (SCA)…, that, tacit relocation of an agreement is a new agreement and not a continuation of the old agreement, it follows, that, a new agreement between the parties came into effect on 1 May 2015 owing to the appellant's conduct of retaining the respondents in its employ on the same terms and conditions of the expired contracts.

Such a finding would have resolved the matter; however, a secondary issue arises from the parties' submissions.

The issue for consideration is the effect of the alleged negotiations, if any, on the relocated contract.

This is necessitated by the appellant's position that the existence of negotiations regarding a new contract negates any finding to the effect that the old contracts were relocated. It is the appellant's position that the engagements between the parties, after the expiration of the contract, are a clear indication that it had no intention of continuing on the old terms.

It relied on communication by the appellant's Human Resources Manager, dated 7 July 2015, informing the respondents that the negotiations had collapsed, thus, a new contract would not materialize and the Works Council determination to that effect.

Per contra, the respondents aver, that, negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised.

In their written submissions, they aver that the purported negotiations were induced by duress as the appellant's Human Resources' Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners.

As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment.

Since tacit relocation is inferred from the presumed intention of the parties to the contract and their conduct, where it is established that both parties accepted that the old contract had terminated and engaged in negotiations regarding a new contract, tacit relocation will be negated.

This is for the reason that neither of the parties would have conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.

In this regard, the court a quo made a factual finding that there was no evidence to the effect that there were any negotiations between the parties from 1 May 2015.

It further found, that, although the appellant may have intended to terminate the contracts, it failed to communicate that intention.

It also took into account the manner in which the parties dealt with the same issue in the past.

When the initial two year contracts expired the employer did not immediately renew the contracts. It merely allowed the employees to continue rendering services on the same terms and conditions of the expired contracts.

It only regularised the contracts after eleven (11) months.

It is settled law that an Appellate Court may only interfere with the decision reached by a lower court based on factual findings where gross misdirection has been established: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

The appellant has not alleged such a gross misdirection which necessitates this court's interference.

More importantly, there is nothing on record to show that the parties engaged in negotiations during the period 1 May 2015 to 22 June 2015 when they were without contracts.

There is no evidence, that, during this period, the appellant communicated to the respondents its intention as to whether or not the two-year contracts would be renewed or terminated.

The first meeting on record occurred in the appellant's board room on 29 June 2015, notably after the period upon which the respondents base their claim for tacit relocation. This is followed by the appellant's letter of 7 July 2015 indicating the collapse of the alleged negotiations.

Given this, the court a quo's finding cannot be assailed.

Its decision was based on a correct application of the principle of tacit relocation as enunciated in Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126.

The fact of the matter is, that, for the two month period, that is 1 May 2015 to 22 June 2015, the conduct of the parties reflects that they intended to be bound by the expired contracts.

Those contracts were therefore tacitly relocated and were to expire after two years - just like the expired contracts.

In the circumstances of this case, a mere attempt to negotiate a new contract does not operate to vary an existing binding contract. The appellant's new offer thus amounted to an attempt to unilaterally vary the respondents' relocated contracts.

This is a classical case of the application of subsections 12(1) and (3a) of the Labour Act [Chapter 28:01] which seek to protect employees by estopping an employer from alleging the non-existence of a contract of employment where there has been continued service in terms of an expired contract.

Counsel for the appellant argued that it would be wrong to invoke section 12 of the Labour Act everytime there is a delay in re-negotiating an expired contract. He contended that section 12 of the Labour Act uses “shall” in a directory sense and not in peremptory terms.

It is the generally accepted rule of interpretation that the use of the word “shall” as opposed to “may” is indicative of a peremptory intent on the part of the legislature.

Failure to comply with the mandatory dictates of law renders the act done a nullity.

However, where the legislature has not explicitly provided that non-compliance is fatal, there is a presumption that the legislature left it to the courts to determine the consequences of non-compliance.

In Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC11-08…, the court had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision.

In interpreting the provisions of the Zimbabwe Electoral Commission Act, CHIDYAUSIKU CJ remarked as follows…,:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory.

The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory.

In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal.

In both of the above instances, no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.'

In Sutter v Scheepers 1932 AD 165 at pp.173, 174 the court gave guidelines on how the real intention of legislature can be arrived at. These were summarised in Pio v Franklin NO and Another 1949 (3) SA 442 (C) as follows:

'(1) The word 'shall' when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this construction.

(2) If a provision is couched in a negative form, it is to be regarded as a peremptory rather than a directory mandate.

(3) If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, then the presumption is in favour of an intention to make the provision only directory.

(4) If when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.

(5) The history of the legislation also will afford a clue in some cases.'”

The principle which comes out of the guidelines is that where strict adherence to the wording of a statute leads to an injustice, or even fraud, in instances where no penalty is prescribed, it may be desirable to lean in favour of making the provision directory.

From the cited authorities, it is the general position that the use of the word 'shall' in a statutory provision requires mandatory compliance.

Where the penalty for infraction of the provision is not explicitly stated, it is for the courts to determine what the consequences of failure to comply should be. In doing so, the court must interrogate the purpose of the relevant statute and pronounce a penalty which is proportionate to the mischief the legislature sought to remedy.

It is my considered view that both provisions are peremptory owing to the specific use of the word “shall” which has mandatory connotations.

Section 12(1) of the Labour Act [Chapter 28:01] provides:

“12 Duration, particulars and termination of employment contract

(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

It is accepted that there is no explicit obligation on an employer, under this provision, to reduce a contract into writing. However, that fact alone does not render the provision directory.

The use of the word “shall” after a description of a factual set of facts in an employment set up, followed by the pronouncement of a specific outcome, is indicative of the fact that the legislature intended the provision to be peremptory.

In enacting section 12(1) of the Labour Act, it appears that the legislature envisaged a situation where services are rendered in return for remuneration but the recipient of the services later disputes the existence of a contract of employment.

The peremptory nature of section 12(1) of the Labour Act is not dependent on whether or not a particular act is done, which, in this case, would be a mandate on the employer to reduce a contract into writing. The peremptory nature of the provision lies in the deemed existence of a contract of employment which follows the rendering of services and remuneration for such services.

Once it is established that services have been rendered, and there is a correlative entitlement to remuneration or actual remuneration, a contract is deemed to be in existence.

It is prima facie proof of employment.

A similar interpretation can be ascribed to section 12(3) of the Labour Act. The peremptory nature of the provision stems from the fact that a contract is deemed to be without limit of time where no specific details of its duration are provided.

The same applies to a casual worker who continues rendering services notwithstanding the expiry of the specific period for which he was engaged.

Therefore, the onus to disprove the continued existence of the contract rests on the party disputing its existence.

It is my considered view, that, the legislature must have been cognisant of the fact that employees are vulnerable under some unscrupulous employers, hence the use of such peremptory provisions in section 12 of the Labour Act.

Having said the above, the circumstances of this case fall into the ambit of the sentiments of the court in Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A) at 165B-C, that:

“…, a court may hold that a tacit contract has been established where, by a process of inference, it concludes that the most plausible probable conclusion from all the relevant proved facts and circumstances is that a contract came into existence…,.”

Applying this approach to the matter at hand, an inference of tacit relocation was justified on the facts of this case.

The court a quo's finding, that, the respondents' contracts were tacitly renewed from 1 May 2015, is unassailable. Therefore, the appellant's termination of the respondent's contracts of employment in the circumstances was grossly irregular.

An employer clearly cannot terminate a contract that has expired - even though it has been tacitly renewed.

The appeal therefore lacks merit and ought to be dismissed. Costs will follow the cause.

It is accordingly ordered as follows:

“The appeal is dismissed with costs.”

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.

The facts of this case are largely common cause and are these:

The respondent was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to become the Health Services Manager.

In terms of his letter of appointment, the appellant's policies and procedures were incorporated into his employment contract.

On a date that is unclear on the papers, but between February and March 2009, the respondent was involved in a serious road accident whilst about the appellant's business.

The respondent suffered serious injuries to his spine as a result of which he was unable to attend to his official duties from 11 March 2009.

The respondent was allowed to go on sick leave on full pay for a period of ninety (90) days.

At the expiration of that period, the respondent was still unable to resume his duties and took more sick leave.

On 7 September 2009, the appellant's Services Director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor's opinion, failure of which his remuneration and other benefits were to be suspended.

Following further correspondence exchanged between the two, the respondent made it clear, that, he remained in the employ of the appellant until such time as his contract was lawfully terminated.

On 18 September 2009, the appellant then wrote to the respondent advising that since he had exceeded the maximum sick leave permissible in a single year, his contract of employment was being terminated forthwith in terms of section 14(4) of the Labour Act [Chapter 28:01] (“the Act”).

Following this development, the respondent then filed an application for review with the Labour Court on 9 October 2009.

In the application, the respondent alleged, that, the termination was unlawful as the appellant had not followed the procedural steps required at law or in terms of his contract of employment in terminating his employment on medical grounds.

It appears, that, on the same date, the respondent filed what purported to be a notice of appeal against the decision to dismiss him.

It is apparent, however, that, in both cases, the respondent sought an order setting aside the decision to terminate his contract of employment.

The Labour Court treated the matter as an application for review.

After hearing submissions from both parties, the court then reserved its judgment on 15 March 2010.

On 15 November 2010, eight (8) months later, the appellant then filed an application for leave to file supplementary heads of argument. The supplementary heads of argument sought to raise the issue whether or not the Labour Court had jurisdiction to entertain an application for review in the first instance.

The application was opposed by way of a letter to the Registrar. No formal opposing papers were filed.

The Labour Court dealt with the request as part of its judgment.

The court was of the view, that, there should be finality in litigation and that to allow a party to file heads of argument after judgment had been reserved would defeat this principle.

The Court therefore dismissed the application to file supplementary heads of argument.

The court further reached the conclusion, that, an employer does not have the authority to summarily terminate an employee's contract of employment in terms of section 14(4) of the Labour Act [Chapter 28:01], and that, regard being had to the purpose of the Act, namely, the promotion of fair labour standards, the employer was under obligation to conform to the requirements of substantive and procedural fairness and that failure to give notice to an employee of an intention to terminate a contract of employment in terms of section 14(4) of the Act is fatally irregular.

The court further found, that, since the respondent's contract of employment embodied other terms applicable in the event of sickness, the appellant should have fully related to those terms and given the respondent the option either of early retirement or being medicallly boarded.

The court concluded, that, as this had not been done, there had been procedural irregularities, and, consequently, set aside the decision to terminate the contract of employment of the respondent.

It is against that order that the appellant has appealed to this Court.

Both parties to this appeal are agreed that the appeal raises three (3) issues for determination. These are:

(a) Whether or not the Labour Court had jurisdiction to entertain the respondent's application for review at first instance.

(b) Whether the Labour Court erred, as a matter of law, in declining to consider the issue of jurisdiction raised in the application to allow the filing of supplementary heads of argument.

(c) Whether the Labour Court was correct, in holding, as it did, that the right to termination in terms of section 14(4) of the Labour Act was subject to procedure and that any irregularity in those procedures entitled the Labour Court to set aside the termination of the contract of employment.

In particular, whether the appellant was obliged to give the respondent the right to be heard before his contract was terminated, and, secondly, whether the appellant was obliged, in terms of the contract of employment between the respondent and itself, to comply with medical boarding procedures or the availing of an option of early retirement before the contract of employment could be terminated....,.

WHETHER THE RIGHT TO TERMINATE IN TERMS OF SECTION 14(4) OF THE LABOUR ACT WAS SUBJECT TO PROCEDURES

Two issues arise in this regard. These are:

(i) Firstly, whether a termination in terms of section 14(4) of the Labour Act is subject to substantive and procedural fairness; and

(ii) Secondly, whether, on the facts of this case, the appellant complied with the provisions of section 14(1) of the Labour Act, and, if so, whether its invocation of the provisions of section 14(4) of the Labour Act was, in the circumstances, proper.

Section 14 of the Labour Act provides:

“14 Sick Leave

(1) Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

(2) During any one-year period of service of an employee, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant up to ninety days sick leave on full pay.

(3) If, during any one year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days sick leave on half pay, where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.

(4) If, during any one-year period of service, the period or aggregate periods of sick leave exceed –

(a) Ninety days sick leave on full pay; or

(b) Subject to subsection (3), one hundred and eighty days sick leave on full and half pay: the employer may terminate the employment of the employee concerned.

(5) An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay.”

It is the appellant's contention, that, section 14(4) of the Labour Act gives the employer an absolute right to elect to terminate the employment of the employee if -

(a) The employee has taken more than ninety (90) days sick leave on full pay in any one year; or

(b) The employee has taken more than one hundred and eighty (180) days sick leave on full pay and half pay in any one year period.

The appellant further argues, that, the right to terminate is not subject to compliance with any particular procedures.

The respondent, on the other hand, argues, that, section 14(4) of the Labour Act does not give an employer an unfettered right to unilaterally and summarily dismiss an employee and that fair labour standards and the audi alteram partem rule still apply in this situation.

In determining this issue, the court a quo relied on the case of Mutukwa v National Diary Co-operative Ltd 1996 (1) ZLR (1) ZLR 348 which held, inter alia, that an employer was entitled to terminate the contract of employment on notice to the employee.

The court was of the view that this principle was applicable to this case.

The reliance on the above case was clearly erroneous.

I say so because section 14(b) of the then Labour Relations Act [Cap 28:01] provided, that, unless more favourable conditions were provided in the contract, where an employee was unable, for a period exceeding one month, to fulfil the conditions of his employment, the employer was entitled to terminate the contract on due notice, in which event the employee was to be entitled to all benefits due to him up to the date of such termination.

The requirement to give notice was in terms of section 14(b) of the then Labour Relations Act [Cap 28:01] and was mandatory.

It is common cause, that, section 14(b) of the then Labour Relations Act [Cap 28:01] was repealed by Act 17/2002 which substituted the section currently in existence and which is the subject of this appeal.

The current provision makes no provision for the giving of notice.

Considering the circumstances as a whole, I would agree with counsel for the appellant, that, there was a clear legislative shift and change of policy regarding the termination of employment on the grounds of excessive sick leave.

Section 14(4) of the Labour Act has no express conditions attached to it except the requirement as to the amount of sick leave which an employee can take in any one year before the right to terminate can be exercised by an employer.

However, since the decision to terminate an employment contract has far reaching consequences, one should assume, that, before such a decision is taken, the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in section 14(4) of the Labour Act, and that, for that reason, it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.

In my view, it would not be proper for an employer to invoke the provisions of section 14(4) of the Labour Act, and, without notice to the employee, proceed to terminate his contract of employment.

In short, the audi alteram principle would still need to be respected, and, failure to do so would render any such termination null and void.

In the present case, however, it is apparent, that, there was correspondence between the appellant and the respondent in which the appellant made it clear that it would invoke the provisions of section 14(4) of the Labour Act.

The respondent challenged the appellant's right to terminate his employment in terms of section 14(4) of the Labour Act. The appellant then terminated the employment with effect from 18 September 2009.

I turn to deal with section 14(1) of the Labour Act.

In an ordinary employment contract, the termination of employment effected on 18 September 2009 would have been the end of the matter.

However, section 14(1) of the Labour Act is qualified by the words:

“Unless more favourable conditions have been provided for in an employment contract…, sick leave shall be granted in terms of this section…,.”

Clearly, the intention, on the part of the legislature, was to give the employer and the employee the autonomy to agree on better terms and conditions than are provided for in section 14 of the Labour Act.

In the present case, it is common cause, that, the appellant's policy and procedure document was incorporated into the contract of employment of the respondent.

The relevant portion of the Group Policy and Procedures, Referenced P+P No.38, provides as follows:

“2. SICK LEAVE

2.1 All Employees:

2.1.1. 90 working days full pay in any one calendar year.

2.1.2. 90 working days half pay in any one calendar year.

2.1.3. During this period of half pay, full employee and Company contributions to the Pension Schemes must be continued.

ZIMASCO GROUP POLICY AND PROCEDURES		DATE: 17.03.03
SUB: LEAVE WITHOUT PAY/CASUAL/		P&P NO.38
COMPASSIONATE/SICK/ACCIDENT		PAGE 2 OF 5
DISTRIBUTION: “E”	SUPERSEDES; 27.06.95

2.1.4. If, during the absence of an employee on sick leave at half pay, it is determined that he/she should be retired on the grounds of being permanently disabled, from illness, immediate steps must be taken to secure early retirement or to have the employee medically boarded.

2.1.5….,.

2.1.6….,.

2.1.7….,.

2.1.8….,.

ZIMASCO GROUP POLICY AND PROCEDURES		DATE: 17.03.03
SUB: LEAVE WITHOUT PAY/CASUAL/		P&P NO.38
COMPASSIONATE/SICK/ACCIDENT		PAGE 3 OF 5
DISTRIBUTION: “E”	SUPERSEDES; 27.06.95

3. SICK LEAVE NECESSITATED BY INJURY

3.1 Arising from Accident at Work

1.1.1. Those employees covered by Workers Compensation Insurance

Full pay for period of absence, recovered from Workers Compensation Department.

1.1.2.Those employees NOT covered by Workers Compensation Insurance

Full pay for the period of absence, provided that the cause of the accident which led to the injury is not attributable to the negligence of the employee.

3.2 Arising from Accident

The conditions laid down in sub-paragraph headed 'sick leave' shall apply.”

The words “unless more favourable conditions have been provided for in a contract of employment” are wide and un-ambiguous.

In other words, where more favourable conditions have been agreed to, those conditions will take precedence over the periods provided for in section 14(4) of the Labour Act and will need to be complied with before any termination is contemplated by the employer.

Paragraph 2.1.4 in particular provides, that, if it is determined that an employee should be retired on the grounds of being permanently disabled, from illness, immediate steps must be taken to secure early retirement or to have the employee medically boarded.

This provision also applies to sick leave necessitated by injury arising from an accident.

It is common cause in this case, that, the provisions of paragraph 2.1.4. of the Group Policy and Procedures were not complied with.

In the circumstances, the appellant could not proceed as if that provision did not exist.

It was a provision that the appellant itself had inserted into the Group Policy and Procedures and which had been incorporated into the contract of employment. That provision certainly provided more favourable terms than would normally be the case. The appellant was therefore under obligation to look at the question of early retirement or medical boarding.

In the circumstances, the decision by the appellant, to terminate the appellant's contract of employment without reference to its own policy and procedures was irregular.

The finding that there was an irregularity in the termination of the respondent's contract of employment cannot therefore be impugned.

In the result, the following order is made:

(1) The appeal is allowed only to the extent that paragraph 3 of the order of the court a quo, dismissing the application to file supplementary heads of argument, is deleted.

(2) The appellant shall pay the costs of appeal.

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against confirmatory proceedings conducted by the Labour Court on 8 September 2017 in terms of section 93(5) of the Labour Act. At the end of the proceedings, the Labour Court made a number of alterations to the draft ruling issued by the Labour Officer.

The Labour Court has the power to confirm a draft ruling with or without amendment.

The issue for determination before this Court is the extent to which the Labour Court can, in confirmation proceedings of the draft ruling of a labour officer, amend such a ruling.

FACTUAL BACKGROUND

The 2nd – 301st respondents were employed by Air Zimbabwe (Private) Limited (“the appellant”) in various capacities at diverse occasions. Following the decision of this Court in Nyamande & Anor v Zuva Petroleum (Pvt) Ltd 2015 (2) ZLR 186 (S), on 17 July 2015, the appellant terminated the employment contracts of the respondents on three months notice. The notices of termination were issued on 31 July 2015 and all made it clear that the termination was pursuant to the appellant's common law right to terminate employment on notice.

Aggrieved by the termination of their employment, the respondents collectively lodged a complaint of unfair dismissal with the Labour Officer. They contended, that, the termination of their employment contracts had been carried out contrary to the provisions of section 12(4) of the Labour Act [Chapter 28:01].

The appellant opposed the claims on three bases:

(i) First, that some of the respondents cited in the proceedings were not party to the proceedings as they had been re-engaged and one of them was deceased.

(ii) Second, that the amendment to the Labour Act that sought to impose retrospective application of section 12(4)(b) of the Labour Act was unconstitutional.

(iii) Lastly, that “if the tribunal was inclined to retrospectively apply the section, then, the matter must be referred to the Constitutional Court.”

In her draft ruling, the labour officer (the first respondent in this matter) found, that, the respondents had been unfairly dismissed and that the termination was therefore null and void.

In addition, she ordered the appellant to comply with section 12(C)(2) of the Labour Act and that her ruling be implemented within thirty (30) days of receipt of the order.

Pursuant to that draft ruling, the labour officer filed an application with the Labour Court for the confirmation of that ruling.

The appellant opposed the application before the Labour Court on several grounds:

(i) First, that the labour officer had erred in failing to refer the matter to the Constitutional Court.

(ii) Second, that the ruling related, in part, to employees who were not party to the proceedings.

(iii) Third, that the labour officer had granted a declarator in spite of the fact that she had no power to do so.

(iv) Lastly, that, the order that the appellant complies with section 12(C)(2) of the Labour Act was improper because that section was not applicable to the matter before her.

In its determination, the Labour Court held, that, the first part of the operative portion of the draft ruling was a declarator in respect of which the labour officer and the Labour Court itself had no jurisdiction to grant.

The court further determined, that, the labour officer ought to have removed the names of the employees who had been improperly joined to the proceedings.

The court also held, that, the order that the appellant pay the minimum retrenchment package to the employees was a misdirection because once the labour officer found that the termination of the employment was unlawful, she should have granted an order of reinstatement.

The court was also of the view, that, in light of section 93(5b) of the Labour Act (which provides that the Labour Court may grant the application with or without amendments) it had the power to amend the ruling so that the final ruling would be legally sound.

The court also determined, that, although the labour officer had not dealt with the request for the referral of the matter to the Constitutional Court, it was clear that such a referral could only be made by a court and not a labour tribunal.

Further, that, the Labour Act, as amended, was valid notwithstanding that it imposed financial obligations on employers retrospectively....,.

At the hearing of the appeal, the appellant abandoned all its grounds of appeal except for the third ground.

The first and second grounds, attacking the retrospective application of section 18 of the Labour Amendment Act No.5/15, were abandoned in light of the decision of the Constitutional Court in Greatermans Stores (1979) (Private) Limited t/a Thomas Meikles Stores & Anor v The Minister of Public Service, Labour and Social Welfare & Anor CC02-18 in which the Constitutional Court held that the retrospective operation of the amendment was not unconstitutional.

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Section 12C(2) of the Labour Act [Chapter 28:01] provides, that, unless better terms are agreed between the employer and the employees concerned or their representatives, a package (“the minimum retrenchment package”) of not less than one month's salary or wages for every two years of service as an employee (or ...

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Law Portal
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Employment Contract re: Termination iro Termination on Notice, Summary and Mutual Termination, Resignation & Repudiation

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC25-16 : EUNICE MADONDO vs CONQUIP ZIMBABWE (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

HH80-10 : BISHOP ELSON MADODA JAKAZI and BOARD OF TRUSTEES, ANGLICAN DIOCESE OF THE PROVINCE OF CENTRAL AFRICA vs THE ANGLICAN CHURCH and REV. JOSEPH CHIPUNDLA and REV. RALPH PETER HATENDI
Ruled By: BHUNU J

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC59-18 : ST. GILES MEDICAL REHABILITATION CENTRE vs LAMBERT PATSANZA
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC42-19 : PIONEER TRANSPORT (PRIVATE) LIMITED vs ELIZABETH ANA DA SILVA
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

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Law Portal Zimbabwe

Employment Contract re: Termination iro Termination on Notice, Summary and Mutual Termination, Resignation & Repudiation

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L Ruled By: UCHENA J

SC00-89 : ART CORPORATION LTD vs MOYANA Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O. Ruled By: BERE J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC25-16 : EUNICE MADONDO vs CONQUIP ZIMBABWE (PRIVATE) LIMITED Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS Ruled By: GARWE JA, GOWORA JA and PATEL JA

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS Ruled By: MALABA CJ

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI Ruled By: ZIYAMBI JA

HH80-10 : BISHOP ELSON MADODA JAKAZI and BOARD OF TRUSTEES, ANGLICAN DIOCESE OF THE PROVINCE OF CENTRAL AFRICA vs THE ANGLICAN CHURCH and REV. JOSEPH CHIPUNDLA and REV. RALPH PETER HATENDI Ruled By: BHUNU J

Appealed SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC. Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE Ruled By: DUBE J

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC59-18 : ST. GILES MEDICAL REHABILITATION CENTRE vs LAMBERT PATSANZA Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS Ruled By: GARWE JA, PATEL JA and MAKONI JA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC42-19 : PIONEER TRANSPORT (PRIVATE) LIMITED vs ELIZABETH ANA DA SILVA Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE Ruled By: PATEL J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL Ruled By: MUREMBA J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

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Zimbabwe

HH75-10 : A.C. CONTROLS (PVT) LTD vs EMMANUEL MIDZI and ALPADETAIL (PVT) LTD t/a E AND Z ENTERPRISES P/L
Ruled By: UCHENA J

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC25-16 : EUNICE MADONDO vs CONQUIP ZIMBABWE (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

SC10-13 : BISHOP ELSON JAKAZI and THE BOARD OF TRUSTEES ANGLICAN DIOCESE OF MANICALAND vs ANGLICAN CHURCH CENTRAL AFRICA and REVEREND JOSEPH CHIPUDHLA and RIGHT REVEREND RALPH PETER HATENDI
Ruled By: ZIYAMBI JA

HH80-10 : BISHOP ELSON MADODA JAKAZI and BOARD OF TRUSTEES, ANGLICAN DIOCESE OF THE PROVINCE OF CENTRAL AFRICA vs THE ANGLICAN CHURCH and REV. JOSEPH CHIPUNDLA and REV. RALPH PETER HATENDI
Ruled By: BHUNU J

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC59-18 : ST. GILES MEDICAL REHABILITATION CENTRE vs LAMBERT PATSANZA
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC42-19 : PIONEER TRANSPORT (PRIVATE) LIMITED vs ELIZABETH ANA DA SILVA
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC