SANDURA
JA:
This
is an appeal against a judgment of the Labour Court in terms of which
that court quantified the amount of damages payable by the appellant
(“the Bank”) to the respondent (“Marimo”), in lieu of
reinstatement.
The
relevant factual background may be tabulated as follows:
1.
On 1 May 1997 Marimo joined the Bank as the manager of the retail
banking division. He had previously worked for Barclays Bank for
fifteen years and for the Commercial Bank of Zimbabwe for two years.
2.
On 20 July 2001 the Bank, acting in terms of s3(1)(a) of the Labour
Relations (General Conditions of Employment) (Termination of
Employment) Regulations, 1985 (published in Statutory Instrument 371
of 1985), suspended Marimo without pay and other benefits because it
believed that he had committed an act of misconduct. On the same day,
the Bank applied to a labour relations officer for the authority to
terminate Marimo's contract of employment.
3.
On 30 January 2002 the labour relations officer made the following
determination:
“The
officer determines that Mr Marimo must be reinstated without any loss
of pay and benefits, and must be paid thirty-six months'wages as
(an) alternative to reinstate(ment) on top of the back-pay in terms
of case no. SC19/2001.”
4.
On 10 April 2002, Marimo submitted to the labour relations officer a
document in which he had quantified his back-pay and benefits as
being $4,048,933.29. In addition, he had quantified his damages in
lieu of reinstatement as being $20,438,843.46 which sum represented
his salary and benefits for thirty-six months. In the circumstances,
the document indicated that the total sum being claimed by Marimo
from the Bank was $24,487,776.75.
5.
On 29 April 2002, after Marimo had registered the labour relations
officer's determination with the provincial magistrate's court, the
clerk of that court wrote to the Bank as follows:
“You
are being advised that the above determination order has been
registered with us in terms of section 96(2) of (the) Labour
Relations Act, Chapter
28:01.
Would
you, therefore, arrange for the payment of the said sum of
$24,487,776.75 within ten days of the date of this notice, failing
which a warrant of execution may be issued against your property for
the recovery of same.”
6.
On 23 May 2002, when the sum claimed from the Bank by Marimo had not
been paid within the time stipulated by the clerk of the provincial
magistrate's court, a warrant of execution was issued on behalf of
Marimo, and two motor vehicles belonging to the Bank were attached
and removed from the Bank's premises by the messenger of court.
7.
On 12 July 2002 the Bank filed a notice of appeal in the Labour
Relations Tribunal (“the Tribunal”), now the Labour Court,
seeking an order setting aside the determination made by the labour
relations officer on 30 January 2002. No cross-appeal was filed by
Marimo challenging the determination made by the labour relations
officer.
On
the same day, i.e. 12 July 2002, the Bank filed an urgent Chamber
application in the Tribunal seeking an order staying the execution of
the labour relations officer's determination and releasing the
Bank's motor vehicles, pending the determination of the appeal. An
order to that effect was issued by the Tribunal on 15 July 2002.
8.
On 4 December 2002 the Tribunal dismissed the Bank's appeal with
costs. The Tribunal's
order reads as follows:
“In
the result it is ordered:
1.
That the appeal against the labour relations officer's
determination be and is hereby dismissed
with costs.
2.
That the appellant (the Bank) is hereby ordered to reinstate the
respondent (Marimo) with no loss of salary and benefits with effect
from the date of suspension.
3.
That in the event that reinstatement is no longer an option, the
appellant be and is hereby ordered to pay the respondent damages in
lieu of reinstatement, the amount of which the parties may agree
upon, failure of (failing?) which either party may approach the
Tribunal for quantification.”
In
issuing this order the Tribunal overlooked the fact that the basis on
which the damages in lieu of reinstatement were to be calculated had
already been determined by the labour relations officer and that, as
the Bank's appeal had been dismissed, the determination by the
labour relations officer remained intact.
9.
On 21 October 2003 Marimo, relying upon the Tribunal's order issued
on 4 December 2002, approached the Labour Court for a fresh
quantification of his damages. On that day he filed written
submissions claiming much more than he had claimed before the labour
relations officer as damages in lieu of reinstatement. He claimed
many more benefits than he had claimed in the document that he had
submitted to the labour relations officer on 10 April 2002. In
addition, he claimed that the Bank was obliged to pay him his salary
and benefits until he reached the retirement age of sixty-five years.
He was then fifty years old.
10.
On 15 June 2004 the parties appeared before the Labour Court and the
Bank filed its written submissions. In those submissions, the Bank
indicated that it was prepared to pay Marimo back-pay and benefits in
the sum of $4,048,933.29, as quantified by Marimo in the document
submitted by him to the labour relations officer on 10 April 2002. In
addition, the Bank indicated that it was prepared to pay six months
salary and benefits amounting to $3,406,473.90, as damages in lieu of
reinstatement. After hearing the parties, the President of the Labour
Court reserved her judgment.
11.
On 23 August 2004 the judgment was handed down. In the result, Marimo
was granted almost everything he had claimed. That included back-pay
in the sum of $38,234,499.00. Aggrieved by that result, the Bank
appealed to this Court, alleging serious misdirections on the part of
the President of the Labour Court.
In
its notice of appeal the Bank prayed for an order setting aside the
Labour Court's order, and remitting the matter to the Labour Court
for a fresh quantification of the damages payable to Marimo by a
different President of that court. However, bearing in mind the fact
that the matter has dragged on for about four years, I do not think
that remitting it to the Labour Court would be the best thing to do
in the circumstances. In any event, I believe that the matter may be
put to rest at this stage on the basis of the evidence on the record.
Although
fifteen grounds of appeal were set out in the notice of appeal, I
believe that the appeal may be disposed of on the basis of one of
those grounds. That ground is that the Labour Court erred and
misdirected itself in holding that the quantification of damages was
to be based on the order issued by the Tribunal on 4 December 2002
and not on the basis of the determination made
by the labour
relations officer on 30 January 2002.
In
my view, this is a valid argument.
As
already stated, on 30 January 2002 the labour relations officer
ordered that Marimo be reinstated without any loss of pay and
benefits and be paid thirty-six months wages as an alternative to
reinstatement. Marimo was also to receive his back-pay.
There
can be no doubt that Marimo accepted the labour relations officer's
determination and was quite happy with it.
I
say so for a number of reasons:
(i)
Firstly, on 10 April 2002 Marimo submitted to the labour relations
officer a document setting out the quantum of his back-pay and
benefits, which was $4,048,933.29, and the quantum of the
damages
to be paid in lieu of reinstatement, which was $20,438,843.46. The
sum of $20,438,843.46 represented Marimo's salary and benefits for
thirty-six months, the period determined by the labour relations
officer. The total sum claimed by Marimo was, therefore,
$24,487,776.75.
(ii)
Secondly, after submitting to the labour relations officer the
document setting out the quantum of his damages, Marimo registered
the labour relations officer's determination with the provincial
magistrate's court in terms of s96(2) of the Labour Relations Act
[Chapter
28:01].
The effect of that registration was that, for purposes of
enforcement, the determination had the effect
of a civil
judgment of the magistrate's court.
(iii)
Thirdly, after the registration of the determination, the clerk of
the provincial magistrate's court wrote to the Bank calling upon it
to pay the sum of $24,487,776.75 within ten days, and indicating that
if it was not paid within that period a warrant of execution would be
issued in order to attach the Bank's property and sell it. That
letter was obviously written with Marimo's approval.
(iv)
Fourthly, when the sum claimed was not paid within the stipulated
period Marimo caused a warrant of execution to be issued by the
magistrate's court, and two motor vehicles belonging to the Bank were
attached and removed from the Bank's premises by the messenger of
court on 23 May 2002. The vehicles were only released after the Bank
was granted an order for their release by the Tribunal.
(v)
Finally, when the Bank noted an appeal to the Tribunal against the
determination by the labour relations officer Marimo did not note a
cross-appeal challenging the determination.
When
the Bank's appeal was subsequently heard by the Tribunal it was
dismissed with costs. That meant that the determination by the labour
relations officer remained intact and that the total sum payable by
the Bank to Marimo was $24,487,776.75. There was, therefore, no valid
basis on which Marimo subsequently approached the Labour Court
seeking a fresh quantification of damages, and his application should
not have been entertained.
As
far as the Bank is concerned, it would appear from the Labour Court's
judgment that when the quantum of damages was debated in that court
the Bank did not seriously challenge the quantum arrived at by the
labour relations officer. The same approach was adopted by the
Bank
in this Court.
Finally,
with regard to costs it seems to me that the most appropriate order
is that each party should pay its own costs.
In
the circumstances, the following order is made:
1.
The appeal is allowed, with each party paying its own costs.
2.
The order granted by the Labour Court is set aside, and the following
is substituted:
“(a)
The application for a fresh quantification of damages is dismissed
with no order as to
costs.
(b)
First Banking Corporation Limited shall pay to Marimo the sum of
$24,487,776.75, together with interest at the prescribed rate from 30
January 2002 to the date of payment in full.”
ZIYAMBI
JA: I agree
GWAUNZA
JA: I agree
Dube,
Manikai & Hwacha,
appellant's legal practitioners
