KAMOCHA J: The
applicant in this matter is an employee of P.G. Industries the first respondent
which had purported to dismiss him by letter dated 8 May 2000 with effect from
31 July 2000. He contested the dismissal
in court. He was successful and was on
17 July 2002 granted an order in the following terms:-
"In the result it is ordered that:-
(1)
The
respondent's decision to terminated the applicant's contract of employment be
and is hereby declared to be null and void.
(2)
The
applicant be reinstated without loss of salary and benefits from 1st
June 2000 to the date of reinstatement.
(3)
The
applicant's claim for payment of the sum of $3 192 803 being in respect of
under payment of salary and bonuses be and is hereby dismissed.
(4)
The
respondent is to pay 50% of the applicant's costs of suit."
As can be seen from the above his claims for unlawful
termination of the contract of employment and reinstatement without loss of
salary and benefits were successful but his claim for three million dollars
failed. In making the above order the
learned Judge opined thus at page 20 of her judgment:-
"The nature and history of this matter are such that in my
opinion the applicant should have foreseen that a genuine dispute of fact might
arise and that he took a risk in option to proceed by way of motion."
The respondent appealed against the order for reinstatement
but its appeal was dismissed with costs.
Similarly the cross appeal by applicant against the dismissal of his
claim for payment of the sum of $3 192 803 was dismissed with costs. The appeal judgment was handed down on 28
November 2003.
Two years later the applicant was back in court suing his
employers seeking an order to compel the respondents to render an account of
his salary and benefits from 1 June 2000 to date of reinstatement. What was being sought was an order to lay
foundation for the determination of whether or not there had been compliance with
the order in case number HC 8044/02 since the parties were not agreed as to the
exact content and extent of the salary and benefits due. On the one hand the respondents contended
that they had paid the amount which they considered was due in terms of the
decision of this court whilst applicant contended otherwise.
The court on 15 February 2007, then issued the following
order.
"Accordingly, it is ordered that:-
1)
First
and second respondents be and are hereby directed to render a statement of
account of applicant's salary and benefits within seven (7) days of this order,
showing applicant's salary and benefits from 1 June, 2000 to date of
reinstatement for purposes of debate by the parties;
2)
First
and second respondents bear costs of this application."
The issue of whether or not the above order was complied with
attracted divergent versions from the parties.
The applicant on the one hand averred that the order had not been
complied with and described the respondents' behaviour as being contemptuous of
the court order. The first and second
respondent on the other hand stated that they had in fact prepared statements
of salary and benefits more than once which applicant rejected preferring his
own calculations. The respondents did
however, concede that such statements were not produced within 7 days of the
court order. Despite the fact that the
statements of account of applicant's salary and benefits were not produced
timeously the parties considered them hence their rejection by the applicant
who preferred his own calculations. It
would therefore not be correct to state that they were not prepared and
produced. It would also not be correct
to say the respondents were in contempt of the court order when in fact the
statements were made and produced albeit not timeously. In the result this court finds they were
prepared and produced albeit out of time.
In the present application the order
that the applicant seeks is as follows:-
"It is ordered that:-
(1)
1st
and 2nd respondents be hereby held to be in contempt of court orders
HC 8044/00; HH 115/02; SC 248/02 (X Ref SC 363/02) and HC 3793/04; and HB-25-07
(sic).
(2)
1st
and 2nd respondent (sic) be hereby ordered to pay a fine of US$50
000 for the contempt within five days of service of this order.
(3)
The
applicant be and is declared reinstated to his post of Marketing Director, job
grade E4, Executive Head of Sales and marketing Department of 2nd
respondent effective from 28 February 2009 and his terms and condition of
service as outlined in paragraph one (1) and 12 to 17 read with annexed
documents.
(4)
That
1st and 2nd respondents be and are hereby granted to
expose 1st and 2nd respondents' assets in whatever form
wherever they exist for attachment and disposal until the full effect of this
order is achieved.
(5)
1st
and 2nd respondents be and are hereby ordered to pay applicant a sum
of US$49 498 867 (net) GBP 1 500 pounds (net) and ZA-Rand 404 000 (net) as at
28 February 2009 and a further sum of US$2 657 240 and ZA-Rand 60 000 up to 31
October 2009 as shown or summarized statements hereto respectively. See note book attached. And further the respondents be and are hereby
ordered to ensure that the applicant is paid his salary and benefits
commensurate with his job description and job title with effect from 1st
of November 2009.
(6)
The
3rd respondent be and is hereby ordered to ensure compliance by 1st
and 2nd respondents with the court orders set out in paragraph 1 - 5
above.
(7)
The
respondents bear the costs of this application on an attorney-client scale."
The above draft order clearly reveals that it was not formulated
and drafted by a legal practitioner. A
perusal of the court application and the documents filed of record establishes
that the applicant drafted paragraph 5 of the draft as shown as page 123 of the
record.
Paragraph 5 of the draft order is
outrageous to the extreme and induces a sense of shock. The applicant is claiming the following
amounts from his employment during the period 31 June 2000 when the employer
purported to dismiss him and 27 February 2009 when he was allegedly
reinstated.:
US$49 498 867 (net)
GBP1 500 (net)
ZAR404 000 (net)
He claimed
to have earned these amounts from 1 June 2000 to 28 February 2009. These amounts would have made him the best
paid executive in this country under the present economic environment. He does not end there, but claims to have
earned further amounts of US$2 657 240 (net), ZAR60 000 from February 2009 to
31 October 2009 - a period of 8 months.
I reiterate that this would be the best paying job in this country under
the current economic environment.
It should have been very clear to
the applicant and especially to his legal representatives that such a claim
should have been initiated by way of summons as the claim is mainly for damages
allegedly suffered as a result of his purported dismissal.
The respondents have vehemently
disputed the figures claimed by the applicant.
They contended that the applicant was in fact paid a sum of $21 820 as a
gesture to meaningfully compensate him.
That was so because his entitlement by law amounted to US$0.64 which was
his 8 billion Zimbabwe dollars entitlement.
It is quite clear that there are
serious disputes of fact on the issue of salary arrears and benefits to which
the applicant claims to be entitled which can only be resolved through a
trial. For instance how does one earn
such huge amounts of money from one's employment within such a short space of
time or even in a life time? It is even
very doubtful if the group of companies does have that kind of money. This can only be properly ventilated through
a full trial.
On the issue of the respondents
being in contempt of orders the impression created in the draft order is that
respondents failed to comply with five court orders when in fact there were
only three, namely the judgment by MUNGWIRA J which was case number HC
8044/000; judgment number HH-115-02; judgment by NDOU J which was case number
HC 3739/04 judgment HB-25-07 and Supreme Court case 363/02; judgment SC-248-02.
This court has already made a
specific finding that the respondents were not in contempt of judgment HB 25/07
case number HC 3792/04.
In SC 248/02 the Supreme Court
upheld the decision of this court declaring the termination of the applicants'
contract of employment null and void and reinstating him without loss of salary
and benefits from 1 June 2000 to the date of reinstatement. The respondent averred that they were not in
contempt of the court order as they reinstated the applicant with effect from 1
June 2000 without loss of salary and benefit and was required to resume duties
on 1 July 2004. He was allegedly
reinstated to the position of Customer Services Manager a grade D
position. But the applicant's position
before the purported dismissal was that of marketing Director Grade E4
(Executive Head of Sales and Marketing Department) of P.G. Zimboard Products
(Pvt) Ltd. What the respondents
attempted to do was not in terms of the court order as they were demoting the
applicant to a lower grade. The
respondents were clearly wrong. On
realizing that the applicant would not accept any demotion the respondents, on
27 February 2009, addressed a letter to the applicant wherein they had this to
say:-
"REINSTATEMENT TO THE P.G.
INDUSTRIES (ZIM) LTD GROUP
We refer to the above matter and please note that P.G.
Industries (Zimbabwe) Ltd hereby reinstates you to the position of Sales and
Marketing Executive within the group.
In view of this, it is our desire to meet you (Mr Mabhena)
and your legal representative which will then enable us to expediently iron out
the semantics and effectively absorb you in the group. Could a meeting therefore be arranged as soon
as practically possible.
Yours sincerely
Ellen Makoni
Group Human Resources Manager"
The applicant averred that the
respondents again failed to reinstate him in terms of the court order. He alleged that he had not been put back to
his previous position including the same responsibilities and job description
and salary. I have already pointed out
that the respondents' efforts to give the applicant a different post were
clearly wrong and contrary to the court order.
The applicant was correct in rejecting the inferior post that had been
offered to him as it was contrary to what the court had ordered.
The respondents have contended that
the applicant is currently gainfully employed as a Sales and Marketing Manager
and all back pay due to him had been paid to him. He was owed eight million Zimbabwe Dollars
which would have been US$0.64 but was, instead, paid US$21 820 as a gesture
to meaningfully compensate him. This, in
my view, is a reasonable amount which cannot be ignored.
This court makes specific findings
that (a) the respondents indeed paid applicant the sum of US$21820 when he was
lawfully only entitled to $0.64. (b) His
claim for the following amounts:- US$49 498 869 (net); GBP1 500 (net); ZAR404
000 (net); US$2 657 240 (net) and ZAR60 000, should be dismissed; (c) The
respondents have re-employed the applicant from 28 February 2009 to date in an
inferior position contrary to the order of this court; (d) the applicant should
accordingly be replaced to his post of marketing Director, job grade E4,
Executive Head of Sales and marketing Department.
The respondent purported to
reinstate the applicant wrongly by giving him a junior post with a lower salary
and benefits. But this court cannot go
so far as holding that the respondents did so with disdain of the court
order. They just seemed to have placed a
wrong interpretation on the court order.
They erroneously believed that by re-instating him as an E1 employee they
would have satisfied the requirements of the court order. They had failed to seriously apply their
minds to the issue before them. That may
indeed be said to have verged on contempt of the court order but I would not go
so far as holding that they deliberately and intentionally intended to be
contemptuous of the court order.
It must also be mentioned that the
applicant's attitude did not help the situation. He was belligerent and did not want to
co-operate. He was reported to have
staged sit ins and disrupting the work place.
He was also reported to have fallen ill and was bed ridden and was said
to have been in a comma for a while. The
respondents financially assisted him with his medical bills and also in times
of his bereavement.
However, the above must not be taken
as an excuse to demote the applicant. It
is only relevant when considering the level of costs that should be awarded to
the applicant.
In the result the order of this
court is as follows:
It is ordered that:-
1.
The
applicant be and is hereby declared re-instated to his post of Marketing
Director, job grade E4, Executive Head of Sales and marketing Department of 1st
or 2nd respondents effective from 28 February 2009 as per letter by
the respondent dated 27 February 2009;
2.
The
prayers in paragraphs 1, 2, 4, 5 and 6 of the draft order on page 5 supra be
and are hereby dismissed; and
3.
The
respondents shall pay costs of this application on the ordinary scale.
Messrs Cheda & Partners, applicant's legal practitioners
Messrs Coghlan & Welsh
respondent's legal practitioners