KUDYA
J:
The
plaintiff's pleadings are a mess.
They
do not comply with the strict requirements of the High Court rules.
The face of the summons does not identify the 13 others. The
declaration does not do so either. In addition it does not comply
with the rules of court. It contains extraneous information and is
argumentative in nature. A letter of suspension, three death
certificates, a burial order and the Supreme Court judgment SC66/02
concerning the plaintiff and the second defendant are attached to the
declaration. It is in the format of a founding affidavit rather than
a declaration. When the defendants requested for further particulars,
the plaintiff responded by applying for default judgment. The default
judgment was refused and the plaintiff was directed to file the
further particulars.
On
receipt of the further particulars on 11 January 2010 the defendants
excepted on 13 January 2010. The plaintiff responded by excepting to
the exception. It is unclear from the papers what became of the
exception.
The
defendants, however, proceeded to file a plea on 14 April 2010.
On
6 May 2010, the plaintiff filed a 23 paged document entitled
“plaintiff's opposing affidavit to defendant's plea” and
three further attachments. The plaintiff withdrew the notice of
opposition in question on 24 May 2010 and proceeded to change what
had been the opposing affidavit into a 23 paged replication.
Notwithstanding
the state of the plaintiff's pleadings, the matter was referred to
trial on 5 November 2010 on the defendants' pre-trial issues. The
issues were:
1.
Who are the plaintiffs in this matter.
2.
Have they been lawfully dismissed.
3.
If not, have they suffered any damages, and if so, in what amount and
on what cause.
The
pleadings are in such shambles because the plaintiff was not
represented by a legal practitioner. Rather, he relied on his trade
union styled Zimbabwe Federation of Trade Unions.
In
order to determine the real issue between the parties I condoned the
state of the plaintiff's pleadings and proceeded with the trial.
At
the commencement of trial, the only plaintiff in attendance was
Shadreck Moyo. The other unnamed thirteen were in default. The trial
proceeded on the basis that only one plaintiff was before the court.
This
affected the claim in the summons.
On
16 November 2009, the plaintiff Shadreck Moyo and 13 others claimed
damages and compensation and outstanding wages and salaries in the
sum of US$3,5 million; a further sum of US$3,5 million for
outstanding wages and salaries and compensation for loss of earnings
for a period of 12 years, interest on these sums at the rate of 30
per centum per annum and costs of suit.
At
the trial, the only plaintiff before me reduced the amounts claimed
to US$275,375.08 for outstanding salaries and benefits and
US$500,000.00 for general damages.
He
set out the history of the matter and by consent referred to exh 1,
the 25 paged bundle of documents that the defendants intended to
produce as an exhibit.
He
was an employee of the second defendant.
On
3 and 4 December 1997, together with other employees, he participated
in an illegal collective job action. On 5 January 1998 and in terms
of section 3(1)(a) of the Labour Relations (General Condition of
Employment) (Termination of Employment) Regulations SI 371 of 1985,
he was suspended from employment without pay or benefits pending an
application to the Ministry of Labour for his dismissal.
On
6 January 1998, the second defendant, through its chairman, the first
defendant, applied to the labour relations officer for an order
terminating the employment of 15 employees amongst whom was the
plaintiff.
A
hearing was held and on 20 July 1998, the labour relations officer
ordered the reinstatement of all the 15 employees without loss of pay
and benefits. The second defendant appealed to the senior labour
relations officer. On 11 January 1999, the senior labour relations
officer made the following determination:
“From
the foregoing facts the determination of the Labour Relations Officer
is set aside in its entirety.
Appellant
is granted permission to dismiss the 15 employees with effect from
the date of suspension.
Appellant
must pay the 15 employees all their terminal benefits within 14 days
of receipt of this determination.”
The
15 employees appealed to the Labour Relations Tribunal.
On
25 September 2000, the Labour Relations Tribunal upheld the appeal of
one of the 15 but dismissed the appeal of the other 14 who included
the plaintiff.
The
14 appealed to the Supreme Court, which dismissed their appeal in in
its entirety on 18 June 2002 in the case of Shadreck
Moyo and Thirteen Others v
Central African Batteries (Pvt) Ltd SC66/02.
Moyo
averred that he only received a copy of the judgment on 3 September
2009 and not on any earlier date because his legal practitioner at
the time Mr Mabuye of Mabuye and Associates met an untimely death.
He
alleged that as he had not been dismissed from employment he was
entitled to damages in respect of lost earnings of US$275,375.08.
He
produced exh 2 and 3 to justify his computation.
He
averred that by 30 October 2010, an employee in grade 5 was in
receipt of a salary of US$240.03. He used this salary to calculate
what was due to him over the 155 months that he has been on
suspension. He used the same salary to calculate his pay leave over
the 12 years that he has been on suspension. He also used the same
salary to calculate the thirteenth cheque bonus over 12 years. He
stated that he was entitled to receive daily allowances at work for
sadza, milk, tea and toiletries. He conservatively placed the cost at
US$1.00 a day and multiplied this by the number of days he was
supposed to be at work over the 12 year period.
On
the general damages he thumb sucked the figure of US$500,00.00 but
based it on the prejudice that has visited the education of his
children. He did not state the number of the children and how they
were prejudiced.
Mr
Chiurayi,
for
the defendant, applied for absolution from the instance on two broad
grounds.
The
first was that the plaintiff failed to disclose a cause of action and
the second was that even if he did disclose it, he failed to prove
the damages he is entitled to receive.
The
first ground calls for an interpretation of the order of the senior
labour officer.
The
plaintiff averred that the second defendant was obliged to write to
him informing him that he stood dismissed from the date of suspension
and thereafter pay him his terminal benefits within two weeks of the
receipt of the order. He contended that the failure to write the
letter of dismissal meant that he remained an employee.
Mr
Chiurayi contended
that he was dismissed by the senior labour officer from the date of
suspension.
Section
2(1) of the Labour regulations in question read:
“No
employer shall summarily or otherwise terminate a contract of
employment with an employee unless -
(a)
He has obtained the prior written approval of the Minister to do so;
or
(b)………………..not
relevant
(c)………………..not
relevant
(d)
The contract of employment is terminated in terms of section 3.”
Section
3 reads:
“3(1)
Where an employer has good cause to believe that an employee is
guilty of -
(a)
Any act, conduct or omission inconsistent with the fulfilment of the
express or implied conditions of his contract;
(c)
(b) – (i) not relevant
The
employer may suspend such employee without pay and other benefits and
shall forthwith apply to a labour relations officer for an order or
determination terminating the contract of employment.”
Section
2(1) and 3(1)(a) replaced the common law right of an employer to
summarily dismiss an employee.
Instead
the authority to dismiss an employee was given to the minister or his
delegate.
The
second defendant complied with the requirements of this section as
demonstrated by the letter of 6 January 1998. In that letter, the
second defendant applied for an order terminating the plaintiff's
employment. The senior labour officer granted an order terminating
the plaintiff's employment with effect from the date of his
suspension. The date of suspension was 5 January 1998.
It
was not necessary for the second defendant to formally write to the
plaintiff that it was terminating his employment from the date of
suspension.
The
contention by the plaintiff that he remains an employee until he
formally receives a letter terminating his employment does not make
sense. This is because if the second defendant was to write such a
letter, it would simply state that he was dismissed from the date of
suspension. He would not be entitled to claim earnings from the date
of suspension cum dismissal to the date the letter is written.
The
plaintiff's further submission that section 13(1) of the Labour Act
[Cap
28:01]
maintains the employer-employee relationship where terminal benefits
have not be paid is incorrect.
All
it does is to criminalize unreasonable delay in payment and deign it
an unfair labour practice.
The
determination ordered that the plaintiff be paid his terminal
benefits within two weeks of receipt of the determination by the
second defendant.
There
is in exh 1 a letter for Mr Jeche dated 25 January 1999 from the
second defendant inviting him to receive payment of his terminal
benefits.
It
was part of the plaintiff's case that his terminal benefits were
not paid.
His
terminal benefits would be for the period commencing on the date he
joined the second defendant to 5 January 1998 when his contract was
lawfully terminated. He, however, claimed terminal benefits from the
date of his suspension to an unspecified date in the future when he
will receive a letter of dismissal.
At
the close of the plaintiff's case, both defendants applied for
absolution from the instance.
The
first defendant based his application on the ground that the
plaintiff failed to establish the basis for citing him in in his
personal capacity. The plaintiff contended that the first defendant
was the one who signed the letter of suspension. He, however,
conceded that he did so as the chairman of the second defendant.
The
pleadings averred that he was the chairman of and shareholder in the
second defendant at the material time.
It
is trite that a private company is separate and distinct from its
shareholders and office bearers. The plaintiff has not shown the
basis for citing the first defendant in these proceedings. I am
satisfied that there is no basis to place him on his defence and
would grant him absolution from the instance.
The
second defendant based its application on two grounds.
The
first was that the plaintiff had failed to disclose a cause of action
against it.
In
my view, such a ground should have properly been raised by way of
exception. It appeared that the second defendant abandoned the
exception it had filed.
Be
that as it may, I see no basis for declining to determine the issue
at the close of the plaintiff's case.
The
plaintiff's action flowed from the determination of the senior
labour officer. He misinterpreted the determination and wrongly
claimed for damages and loss of earnings arising from a period after
he ceased to be an employee.
I
am satisfied that he had no cause of action against the second
defendant, other than the payment of his terminal benefits up to 5
January 1998.
He,
however, did not claim, quantify or prove those terminal benefits. It
is not feasible to grant terminal benefits he has not sought or
proved.
The
second basis for absolution sought by the second defendant was that
the plaintiff failed to prove its claims.
I
agree with the submission.
Thus
even if it could be found that he remains an employee until he
receives a letter formally terminating his employment, the plaintiff
did not justify why he chose a salary for a particular month for use
over the period he believed he was entitled to loss of earnings.
He
sought to rely on the provisions of section 22(1) of the Battery
Manufacturing Industry Employment Regulations SI 665/1983.
However,
that section deals with the calculation of a gratuity based on “the
current monthly wage on termination.” It does not deal with the
computation of loss of earnings over the period of suspension.
The
insurmountable difficulty he faced was that a greater portion of the
period that he claimed for loss of earnings, that is from 5 January
1998 to February 2009; the currency used in Zimbabwe was the Zimbabwe
dollar.
He
neither stated nor proved the amount due to him in local currency. He
did not lay a basis for converting that amount into the current
United States dollar dominated multicurrency regime.
Again,
for the period from February 2009 to the date of his dismissal, it
was his duty to establish and prove the actual amounts due to him as
a grade 5 employee of the plaintiff. He would have relied on
information similar to the one captured in exh 3.
His
evidence was woefully short in establishing the basis for awarding
him general damages.
He
based his claim on failure to give his children an education.
In
my view, this was a novel ground.
General
damages are often awarded for the hurt, pain, indignity and injury
the claimant suffers that he attributes to the wrongful actions of
the defendant.
All
I can say is that the plaintiff did not properly think through his
claim for general damages. He failed to justify, establish, or prove
it.
Had
the plaintiff's interpretation of the determination been correct, I
would have granted the second defendant absolution on the basis that
the plaintiff failed to justify, establish and prove its claims. I,
however, grant absolution to the first defendant on the ground that
the plaintiff wrongly and improperly cited him in these proceedings;
and to the second defendant on the ground that he firstly, failed to
establish a cause of action against it and secondly did not claim or
prove the terminal benefits due to him to the date of his dismissal.
The
plaintiff's claims were totally hopeless.
In
my view, they were designed to harass the defendants. The language
used in the plaintiff's pleadings was intemperate and discourteous.
The action amounts to an abuse of court process. The correct measure
of costs awarded to the defendants is on the scale of legal
practitioner and client.
Accordingly,
it is ordered that:
1.
The first and second defendants be and are hereby absolved from the
instance.
2.
The plaintiff shall pay the defendants' costs on the scale of legal
practitioner and client.
Coghlan,
Welsh and Guest,
the defendants' legal practitioners
