MALABA DCJ: At the end of hearing
argument for both parties the appeal was dismissed with costs. It was indicated
at the time that reasons for the decision would follow in due course. These are
they.
On 26 November 2009 the appellants issued out summons
in the High Court claiming against the respondents payment of damages, in the
sum of US$3 500 000.00, a further sum of US$3 500 000.00 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 cent per annum and costs of suit.
On 16 February 2012 the High Court granted a judgment of absolution from the
instance. This caused the appellants to approach this court for redress.
The appellants were employees of the second respondent which is a company
duly registered in terms of the laws of Zimbabwe. The first respondent is
the director of the company. On 3 and 4 December 1997, the appellants
participated in an unlawful collective job action.
On 5 January 1998 the appellants were suspended from employment without pay or
benefits in terms of s 3(1) (a) of the Labour Relations (General Conditions of
Employment) (Termination of Employment) Regulations, S.I. 371 of 1985, pending
an application to the Ministry of Labour for authority to dismiss them.
On
6 January 1998, the second respondent, applied to the Labour Relations Officer
for an order terminating the employment of 15 employees who had embarked on the
unlawful collective job action. A hearing was held. On 20 July
1998, the Labour Relations Officer ordered the reinstatement of all the
employees without loss of pay and benefits. The second respondent
appealed to a Senior Labour Relations Officer. On 11 January 1999, the
Senior Labour Relations Officer allowed the appeal. The determination
made by the Labour Relations Officer was set aside in its entirety. The
employer was granted permission to dismiss the appellants with effect
from the date of suspension and was ordered to pay their terminal benefits
within 14 days of receipt of the order.
The appellants appealed to the then Labour Relations Tribunal which dismissed
the appeal save for one employee whose appeal was upheld. He was
reinstated. The fourteen(14) employees appealed to the Supreme Court,
which dismissed their appeal in its entirety on 18 June 2002 in judgment No. SC
66/02. The effect of the dismissal of the appeal by the Supreme Court was
that the employees stood dismissed from employment with effect from the date of
suspension which is 5 January 1998.
The appellants took the view that the effect of the dismissal of the appeal by
the Supreme Court was a grant of authority to the employer. In their
understanding the effect of the order of dismissal of the appeal was not that
they were dismissed by the court's decision. They argued that they
remained in employment until dismissed by the employer.
The appellants aver that they only became aware that their appeal was dismissed
by the Supreme Court on 3 September 2009. The basis for the claim against
the respondents was that the second respondent failed to write letters of
dismissal to the appellants after the dismissal of the appeal by the Supreme
Court.
In the court a quo the appellants made
reference to the provisions of section 13(1) (a)-(d) of the Labour Act [Cap. 28:01].
The argument was that when an employer has not paid terminal benefits the
employee remains under employment. Section 13 of the Act provides as follows:
“13 Wages and benefits upon termination of employment -
(1) Subject to this Act or any regulations made in terms of this Act, whether any
person -
(a) is dismissed from his employment or his employment is otherwise terminated; or
(b) resigns from his employment; or
(c) is incapacitated from performing his work; or
(d) dies; he or his estate, as the case may be, shall be entitled to
the wages and benefits due to him up to the time of such dismissal,
termination, resignation, incapacitation of death, as the case may be,
including benefits with respect to any outstanding vacation and notice period,
medical aid, social security and any pension, and the employer concerned shall
pay such entitlements to such person or his estate, as the case may be, as soon
as reasonably practicable after such event, and failure to do so shall
constitute an unfair labour practice.
(1a) Wages and benefits payable to any person or to his or
her estate in terms of this section shall not form part of or be construed as a
retrenchment package which an employee is entitled to where his or her
employment has been terminated as a result of retrenchment in terms of s 12C.
(2) Any employer who without the Minister's permission withholds or unreasonably
delays the payment of any wages or benefits owed in terms of subsection (1)
shall be guilty of an offence and liable to a fine not exceeding level seven or
to imprisonment for a period not exceeding two years or to both such fine and
such imprisonment.
(3) The court convicting an employer of an offence in terms of subsection (2) may
order him to pay -
(a) To be employee concerned; or
(b) To any person specified by it for the benefit of the employee concerned; in
addition to any other penalty which it may impose, an amount which, in its
opinion, will adequately compensate the employee concerned for any prejudice or
loss he has suffered as a result of the contravention concerned, within such
period and in such instalments as may be fixed by such court.
(4) The court may at any time on the application of the employer, employee or
specified person concerned, for good cause shown, vary an order made in terms
of subsection (3).
(5) Sections 348 and 349 of the Criminal Procedure and Evidence Act [Chapter 9:07] l
shall apply, mutatis mutandis, in relation to the amount specified in an order
in terms subsection (3) as if such amount were a fine referred to in those
sections.
(6) Nothing contained in this section shall be construed as precluding a person referred
to in subsection (1) or his representative or the executor of his estate, as
the case may be, from claiming over and above any wages or benefits to which he
or his estate is entitled in terms of subsection (1), damages for any prejudice
or loss suffered in connection with such dismissal, termination, resignation,
incapacitation or death, as the case may be.”
At the commencement of trial, the only plaintiff in
attendance was the first appellant. The rest of the appellants were in
default. The trial proceeded on the basis that only one plaintiff was
before the court. This affected the claim in the summons, the amounts
claimed were reduced to US$275 375.08 for outstanding salaries and benefits and
US$500 000.00 for general damages. Only first appellant's claim was
considered and determined. The claim of the rest of the appellants has
not been dealt with hence they are not properly before this Court.
The first appellant alleged that he never received
his terminal benefits. He contended that he never received a letter of
dismissal from the employer. He said he was entitled to damages in
respect of lost earnings computed by using the salary scale of an employee in
his grade as at 30 October 2010. He used the same salary to calculate his
leave pay for 12 years that he said he has been on suspension. He also
used the same measure to calculate the bonus he claimed he was entitled to
during the period of 12 years. The claim for general damages was based on
the alleged prejudice that he claimed he suffered as a result of failing to
educate his children.
The court a quo correctly dismissed the
claim by the appellant on the ground that it was based on a deliberate
misinterpretation of the provisions of s 13 of the Act. The learned judge
at pages 3-5 of the cyclostyled judgment said:
“The first groundcalls 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 means that he remained an employee. Mr
Chiurayi contended that he was dismissedby 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.
(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
delegatee. 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
[Chapter 28:01] maintains the employer-employee relationship where terminal
benefits have not been paid is incorrect. All it does is to criminalize
unreasonable delay in payment and make it an unfair labour practice.”
Further, the court a quo, correctly held that the first appellant
deliberately misconstrued the effects of the judgments which dismissed the
appeal in order to justify his view that he remained an employee of the second
respondent. As a result the court a quo held that the appellant
had not produced evidence to be rebutted by the respondents at the close of his
case. Absolution from the instance was granted.
In granting the application for an order of absolution from the instance the
judge said at pages 5-6 of the cyclostyled judgment:
“…. 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 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 appellants put before the court broad allegations
as grounds of appeal against the judgment of the court a quo.
Upon careful consideration and having heard Mr Moyo who argued the
matter on behalf of 13 others the court unanimously dismissed the appeal with
costs.
It is clear that the claim presented to the court a
quo by the appellants was based on the belief that they were still
employed by the respondents for the past 12 years from the date of
suspension. It was the appellants' contention that they were never
dismissed from employment because they did not receive letters of dismissal.
The appellant's position clearly ignores the effect and meaning of the
judgments dismissing the appeals. The effect of those judgments was that the
appellants were dismissed from employment with effect from 5 January 1998. The
appellants had no right to claim payment of salaries against the respondents
since they were no longer employed by the same.
Under s 3 of S.I. 371 of 1985, there is no
requirement for an employer to inform the employee in writing of the decision
of a labour officer that he has been dismissed with effect from the date of
suspension. The appellants were by operation of law dismissed with effect
from the date of suspension once the Senior Labour Relations Officer upheld
their dismissal. The termination of employment was not dependent on a
subsequent letter of dismissal.
Further there is evidence on record which shows that on
25January 1999 the second respondent wrote to the appellants advising them to
come forward and collect their terminal benefits within 14 days. Some
collected but others chose not to. The appellants did not dispute receipt
of the letter. This alone is proof that the appellants were made aware of
the termination of their employment contracts. The second respondent as
the employer duly complied with the order of the Senior Labour Relations
Officer.
The appellants never claimed terminal benefits in the
court a quo. They claimed terminal benefits payable up to an
unspecified future date. They were not entitled to payment of such
amounts. Their claim was properly rejected by the court a quo. In
the absence of any claim for payment of terminal benefits the court a quo
was correct in granting an order of absolution from the instance.
In terms of s 13(6) of the Act, the appellants would
have been entitled to claim money that they had not been paid by the
respondents before the date of their dismissal. There is nothing in the
record of proceedings to show that the respondents' indebtedness to the
appellants went beyond the payment of salary arrears and benefits as at 5
January 1998. The appellants were entitled to claim terminal benefits
accrued up to 5 January 1998, they did not claim them in the court a quo.
It is for these reasons that the appeal was dismissed
with costs.
ZIYAMBI JA: I agree
OMERJEE
AJA: I agree
Coghlan Welsh & Guest,
respondent's legal practitioners
