MUTEMA J: The present feud has its genesis in matters of employment law. The
first and second respondents are the third respondent's managing director and
human resources manager respectively. The Applicant was employed by the third
respondent as a manager. In 1995 he was dismissed from employment by the
respondents. On 21 December, 1999, the Employment Council for the Banking
Undertaking which heard the applicant's appeal, resolved that an incorrect Code
of Conduct had been used and ordered that the applicant “should be reinstated
with full pay and benefits from the date of his initial discharge, to the date
that the hearing in terms of the NEC's Code of Conduct (S I 111 of 1994) takes
place”. Dissatisfied with this decision, the third respondent lodged an appeal
to the then Labour Relations Tribunal. On 6 March, 2003 the Labour Relations
Tribunal dismissed the appeal and upheld the Employment Council's decision of
reinstatement. This is the judgment number LRT/H/19/2003. Thereafter, the third
respondent approached the Labour court to quantify the amount payable to the
applicant. This was after the parties had in vain attempted to settle out of
court. The Labour court ruled that the third respondent was barred from
approaching the court until after purging its contempt of not complying with
its earlier judgment upholding the Employment Council's decision of
reinstatement. This is the judgment number LC/H/156/2007.
Thereafter, on 7 July, 2008 the
applicant lodged contempt of court proceedings against the third respondent in
the Labour court. That application was dismissed on the basis that the Labour
court had no jurisdiction to entertain it. On 22 September 2009 the applicant
registered the two Labour court judgments cited above with this court for
enforcement purposes.
The current application filed on 6
July, 2010 avers that the applicant has on countless occasions, tendered his services to the third respondent
but the respondent via its agents the first and second respondents has scoffed
at him and refused to reinstate him.
The order sought in terms of the
draft reads:
“IT IS ORDERED THAT:
1.
The
first, second and third respondents are hereby declared in contempt of judgment
number LRT/H/19/2003 of the Labour Relations Tribunal (delivered on 2 September
2002) and judgment number LC/H/156/2007 of the Labour court (delivered on 21
May 2007) which were registered with the court in terms of s 92 B of the Labour
Act [Cap 28:01].
2.
The
first and second respondents shall be committed to prison for ninety (90) days
until such time they comply with the aforesaid orders.
3.
The
third respondent is hereby ordered to pay a fine of US$500-00 per day from the
date of the granting of this order up to the date upon which the third
respondent complies with judgment number LRT/H/19/2003 of the Labour Relations
Tribunal (delivered on 2 September, 2002) and judgment number LC/H/156/2007 of
the Labour court (delivered on 21 May 2007) which were registered with this
court in terms of s 92 B of the Labour Act [Cap
28:01].
4.
The
costs of this application shall be borne by the first, second and third
respondents jointly and severally the one paying the other being absolved on a
legal practitioner and client scale”.
The respondents opposed the
application on the main plank that the facts of the matter do not ventilate any
semblance of contempt of court. Firstly, the judgment of the Labour court of 21
May, 2007 (LC/H/156/2997) is not an order ad
factum praestandum that can be enforced by contempt of court proceedings. Secondly,
the judgment (LRT/H/19/2003) dated 2 September, 2002 was complied with in that
the applicant was reinstated and all that he was owed by the third respondent
by way of back pay was calculated and tendered to him but the applicant
rejected the tender. It so happened that due to effluxion of time, by the time
the applicant was reinstated, he had already reached retirement age but he
refused to retire.
Contempt of court was described by
LORD DIPLOCK in Attorney General v Times Newspapers Ltd (1973) 3 ALL ER 54
HL at p 71 as follows:
“Contempt of court is a generic term
descriptive of conduct in relation to particular proceedings in a court of law
which tends to undermine that system or to inhibit citizens from availing themselves
of it for the settlement of their disputes. One may leave aside for the
purposes of the present appeal the mere disobedience by a party to a civil
action of a specific order of the court made on him in that action. This is
classified as a 'civil contempt'. The order is made at the request and for the
sole benefit of the other party to the civil action. There is an element of
public policy in punishing civil contempt, since the administration of justice
would be undermined if the order of any court of law could be disregarded with impugnity
…”.
Now, on the facts of the present
case, does the respondents' conduct amount to disobedience of a court order?
Regarding judgment LC/H/156/2007, the import of the order was that the employer
(“the third respondent”) was barred from approaching the court until after
purging its contempt of failing to reinstate the applicant to employment. It
therefore imposed no enforceable obligation and in the event, the order should
not have been registered in terms of s 92 B of the Labour Act. Its registration
created no order ad factum praestandum
that can be enforced. Perhaps had the respondents approached the court in
pursuit of the same subject matter one could argue that they would have
disobeyed that court order but that is not the case. Since none of the
respondents breached or disobeyed that order which in any event created no
enforceable obligation, I find no ground upon which it can be said that the
respondents are in contempt of court, regarding this particular order.
As regards the other judgment –
LRT/H/19/2003 – the operative part of that judgment reads: “The appeal is
accordingly dismissed and the decision appealed against is upheld with costs”.
The decision that had been appealed against was that of the Employment Council
for the Banking Undertaking sitting as an Appeals Board. That Board had ruled
that “Stanbic should effectively reinstate Mr Munhumutema up to the day that
they hold the new initial hearing. His reinstatement should be with full back
pay of all monies owed to him”.
That ruling was given, as already
stated above, on 21 December, 1999. After the third respondent had appealed
against that ruling to the Labour Relations Tribunal, that appeal was dismissed
on 6 March, 2003.
The question which begs the answer
is whether the respondents, particularly the third respondent, did comply with
the Board's order for reinstatement with full back pay of all monies owed to
him as upheld by the Labour Relations Tribunal on 6 March, 2003, when the
Tribunal confirmed the Appeals Board ruling of 21 December, 1999. Of note is
the fact that the applicant had been dismissed as far back as 1995. In 1995 the
applicant was not yet due for retirement but by 21 December, 1999 he had passed
his retirement age of 60 years which was due in June, 1999.
The third respondent contends that
it did comply with the order of reinstatement with full pay and benefits. The
applicant contends to the contrary.
On the facts of this case was the
applicant reinstated? In Commercial
Careers College (1980) (Pvt) Ltd
v Jarvis 1989 (1) ZLR 344, it was
held that:
“Reinstatement meant no more than a
directive that the employee be replaced in her post and remunerated. It did not
entail the further obligations on the part of the employer to provide work”.
And in Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 it was held that from an order of
reinstatement, the following consequences are said to flow:
(a)
the
employee is entitled to be replaced in his post;
(b)
there
is no obligation on the employer to provide him with work;
(c)
the
employer must continue to remunerate him upon the tender of his services;
(d)
the
employer is to restore him to the pay roll with effect from the stipulated
date.
Upon reinstatement the ordinary
contractual relationship between employer and employee resumes i.e. the status quo ante dismissal is restored and the
relationship should continue with all the rights and obligations under the
contract of employment until such time as the contract was terminated on lawful
grounds. What the third respondent did in
casu by calculating all salaries with corresponding increments together
with interest that were owed to the applicant and tendering the same to him
effectively amounted to reinstatement.
The order of the Appeals Board and
indeed that of the Labour Relations Tribunal created no rights for the
applicant outside the normal contract of employment between the parties for to
do otherwise would entail the Tribunal creating a new agreement for the parties
which no court is legally competent to do. The contract of employment between
the parties was to run until the applicant attained the age of 60 years (his
retirement age) which was due in June, 1999. Despite having been dismissed in
1995, the applicant, on being reinstated pursuant to the Tribunal's order, had
what he was owed until his retirement age calculated and tendered to him on 10
June 2006 including an ex gratia
payment of $15 million by way of cheque. However, for reasons best known to
himself, the applicant refused to accept the payment.
Paragraph 1.20 of the third
respondent's Pension Fund Rules clearly stipulates that the normal retirement
age is 60 years. Paragraph 5.1.1 (iii) allows retirement past the normal
retirement date if the member so wishes and the employer is agreeable
but not later than the attainment of age 70 years . (my emphasis). In
the instant case, no such agreement to extend the applicant's retirement age up
to 70 years was ever reached by the parties. The contention by the applicant
that “in terms of the proviso to r 5.1.1. (ii) of the Pension Rules, the
retirement age provided for in the Pension Rules does not apply to an employee
who has been made redundant” is a misinterpretation of the relevant paragraph.
The proviso sought to be relied upon reads:
“It is specifically provided that the
age requirements shall not apply in respect of a member whose retirement is due
to retrenchment or redundancy”.
This proviso is only relevant to and
limited to subpara (ii) which governs early retirement stipulating age 55 years
(or 50 years in respect of a female member). These are the age requirements
which “shall not apply in respect of a member whose retirement is due to
retrenchment or redundancy”. The proviso does not at all apply to the normal
retirement age in subpara (i).
Although the Appeals Board, and a fortiori the Labour Relations Tribunal
ordered applicant's reinstatement by the third respondent “up to the day that
they hold the new initial hearing … with
full back pay of all monies owed to him” both orders were made well after the
applicant's retirement date of age 60 years as contemplated by the contractual
relationship between the two parties. It cannot, by any stretch of the
imagination, be construed to mean that the employment contract was meant to
endure after the cut off date of retirement. As it is the applicant is now well
over 73 years and no initial hearing has been held. Can it then be argued that
the applicant has rights emanating from the contractual relationship? To hold
so would not only be absurd, but would be tantamount to the court either making
or extending a contract for the parties which is legally incompetent for any
court to do. I am sure the order of
reinstatement did not contemplate such an eventuality. The reinstatement was confined
by implication to the date of the applicant's retirement as per the
original contract of employment. Had the anomally prima facie exitant in
the order been laid bare to both tribunals, the wording of the reinstatement
order would certainly have taken it into account.
In the event, the third respondent
did comply with the order of reinstatement and there is nothing on the papers
to sustain that the respondents committed a civil contempt of court.
Consequently, the application be and is hereby dismissed with costs.
Dzimba, Jaravaza & Associates, applicant's
legal practitioners
Atherstone
& Cook, respondents' legal practitioners
