NDOU J: This matter has a
chequered history. The matter ended up
at the Supreme Court as constitutional application in terms of section 24(1) of
the Constitution of Zimbabwe. The
Supreme Court ordered:
"(1) It is ordered that
the applicant's rights in terms of sections 18(9) and 18(10) of the
Constitution of Zimbabwe were violated.
(2)
It is declared that the
attachment and removal of the applicant's property . were wrongful and
unlawful.
(3)
.
(4)
At the hearing of case number
HC 3222/98, the High Court shall deal with the following additional issues:
(a)
the compensation to be paid to
the applicant for the loss of his property in accordance with the formula set
out in this judgment.
(b)
The question of the damages
payable to the applicant for the unlawful deprivation of the use of his property
from the date it was removed from his residence to the date of the commencement
of the trial; and
(c)
Whether the sum of $150 000,00
allegedly spent by the applicant when he appeared at the High Court for trial
in May and July 2003,is recoverable from the respondent ."
Although
the trial was long, most issues seem to me to be common cause or at least
beyond dispute. On 1 June 1995 the
plaintiff joined the defendant company as one of its employees in Bulawayo. The company had a code of conduct ("the code")
in terms of which
the penalty for absenting oneself from duty for three or more consecutive days
without a lawful excuse was a final written warning. On 4, 5 and 6 December 1995 the plaintiff
did not turn up for work. He alleges
that he had been authorised to be away from work as he was taking examinations,
but that is denied by the company. On 14
December 1995 the company's disciplinary committee found him guilty of
absenting himself from duty without a lawful excuse and issued a final written
warning to him.
Thereafter, on 13 March 1996, the
company's operations manager transferred the plaintiff to the company's Mutare branch, but he
refused to go there. Consequently, the
operations manager suspended him from duty pending dismissal. He cited two grounds. The first was wilful disobedience to a lawful
order, and the second was acting in a manner inconsistent with the fulfilment
of the express or implied conditions of the contract of employment. Subsequently, on 2 April 1996, the company's
disciplinary committee was convened.
After hearing the matter, the committee found plaintiff guilty on 22
April 1996 and recommended his dismissal.
His employment was terminated on 31 May 1996. Aggrieved by the termination of his
employment, the plaintiff instituted these proceedings under case number HC
3222/98 on 20 August 1998 claiming, inter alia, damages for wrongful
dismissal. As alluded to above, this is
the only issue outstanding for determination.
The plaintiff was not happy with the proceedings of 14 December 1995,
which found his guilty and penalised him with a final written warning. He appealed against this finding. He gave his appeal to the company's personal
officer in his capacity as the chairman of the disciplinary committee. The chairperson refused to accept the appeal
but instead advised the plaintiff to bring up the matter as "a grievance" as
specified in the Code. The plaintiff
obliged, and wrote to his immediate superiors.
But the production foreman and the production manager did not
respond. The defendant company,
therefore, denied the plaintiff his labour rights enshrined in the code. The plaintiff was denied an opportunity to
try and rescind the final written warning.
The explanation given by the defendant's witnesses for such denial is
not reasonable. This committee could
still have been convened in terms of the code even after the exclusion of the
interested managers. This denial of the
right to appeal is material
because without
the final written warning the plaintiff would not have been dismissed. The company ignored the code to the detriment
of the plaintiff's labour rights. In the
circumstances, I
hold the view that this subsequent dismissal was wrongful. On the question of the quantum of damages, it
is not easy to determine them. This is
so because the wrongful dismissal occurred in 1996. The amount of $70 162 577 950,50 claimed by
the plaintiff is fair and reasonable.
The plaintiff also prayed that he be
declared to have been appointed a substantive production superintended with
effect from 1 June 1996 i.e. after he finished his training on 31 May 1996. It is common cause that the company had the
discretion to make such an appointment depending on the plaintiff's performance
and the performance of the company. The
company also had the discretion to extend the training period. The plaintiff relies on legitimate
expectation. It is trite that legitimate
or reasonable expectation may arise either from an express promise given on
behalf of a public authority or from the existence of a regular practice which
the claimant can reasonably expect to continue - Tullybelton in Council of
Civil Service Unions v Minister of Civil Service [1984] 3 ALL ER 935
(HL) 944; Administrator, Transvaal v Traub 1989(4) SA 731 (A) at
756 I; Metsola v Chairman, Public Service Commission & Anor 1989
(3) ZLR 147 (S); Taylor v Minister of Education & Anor 1996
(2) ZLR 772 (S); National Director of Public Prosecutors v Phillips
2002 (4) SA 60 (W); South African Veterinary Council v Szymanski
2003 (4) SA 42 (SCA); President of the Republic of South Africa & Ors v
South African Rugby Football Union & Ors 2000 (1) SA I (CC) and Matake
& Ors v Ministry of Local Government & National Housing &
Ors HB-93-07. The discretion enjoyed
by the company entails either a
favourable or an unfavourable outcome.
No legitimate expectation could therefore have been created by the
defendant that the plaintiff will be appointed a production superintendent at
the end of the training period in 31 May 1996.
Such an expectation by the plaintiff would not be reasonable. In the circumstances the damages have to be
determined on the basis of the plaintiff being a trainee.
X Ref SC 2/04; HC 3778/99 & 1341/00
Accordingly, it is ordered that:
(a)
the plaintiff was wrongfully
dismissed by the defendant company.
(b)
The defendant company shall pay
the plaintiff an amount of $70 162 577 950,50 as damages for such wrongful
dismissal with interest thereon at the prescribed rate from 20 August 1998 up
to date of payment in full.
(c)
The defendant to pay costs of this
application.
Coghlan & Welsh, defendant's legal practitioners