Employment Contract re: Transfer or Secondment of Employees, Variation of Conditions of Service & Disguised Retrenchments

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru office from where he was transferred to the Masvingo office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo.

On 14 November 2003, the respondent's Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given, in the memorandum, as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo office was performing better than the Gweru office, though the Masvingo office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer.

The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold - but did not say for how long.

It is common cause, that, after the appellant had made his submissions, a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003, the Deputy Director wrote to the appellant advising, among other things, as follows:

“The directorate held a meeting at 11:00hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also, we note, that, you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all, have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic Safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo, with effect from 1 January 2004, still stands.”

On 27 November 2003, the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed.

He did not succeed.

He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration.

The arbitrator held, that, the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court.

The appellant's grounds of appeal are as follows:

1. The Labour Court made a total error of law in its interpretation of clause 8.5 of the Traffic Safety Council of Zimbabwe's conditions of service as regards the transfer of employees.

2. The Labour Court incorrectly interpreted the audi alteram partem principle, and, therefore, wrongly applied the doctrine on finding that it was observed by the respondent.

3. The Labour Court erred in law on finding that my legitimate expectation to be heard was fulfilled by the respondent.

The appellant does not dispute the contents of the letter addressed to him on 20 November 2003. His contention is that the original decision, of 10 November 2003, should never have been made without him being granted a hearing. He referred this Court to the respondent's conditions of service, and to the case of Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S).

It is conceded, and rightly so, by the respondent, that, the appellant should have been granted a hearing before the decision to transfer him was made.

Indeed, that is the principle laid down in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S).

The appellant's attitude, in his submissions, is that once that decision was unlawful it should be set aside.

If the matter had ended there, with that decision made in that manner, I would have no hesitation in holding that it was improper to handle the transfer in that manner although declaring it unlawful would remain an arguable issue depending on the circumstances of the case.

However, that is not the position in this case.

To begin with, the appellant made submissions, detailed submissions, in writing, against the transfer. As a result, the respondent's Directorate held a meeting to deliberate on his submissions.

It is not as if the respondent refused to hear him.

Can it be said, that, once the appellant made representations, the employer should necessarily have made a different decision?

I do not believe that to be the position, and the appellant cannot say that is the position either.

Secondly, it has not been shown, that, the respondent made its original decision on the basis of grounds which have since been proved to be incorrect.

It was still open to the respondent to arrive at the same decision - even after hearing the appellant.

It must be accepted, that, the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer's discretion, in determining which employee should be transferred and to which point of the employer's operations, is not to be readily interfered with except for good cause shown.

Good cause, in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimization of the employee, and any action taken to disadvantage the employee.

The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant's objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes to work for an employer, whose business is carried out at different places, takes the risk of being sent to perform services for the employer where ever such services are required unless the employment contract stipulates that he is to be employed and remain at a specific place only: see Ngema Chule v Minister of Justice: Kwazulu & Anor 1992 (4) SA 349.

While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied, that, since the respondent did not compel the appellant to go on transfer before he was heard, but, deliberated on the issue before re-affirming its previous decision, the requirement of the audi alteram partem rule was complied with.

There is nothing in the Labour Court's judgment which points at a wrong interpretation of clause 8:5 to 8:5.3. of the appellant's conditions of service.

That clause deals with transfer costs, and it is not the appellant's case that he was denied such costs.

That ground of appeal is baseless.

Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), which the appellant relied on in most of his submissions, while emphasizing the need for an officer to be heard before transfer, cannot be said to set the precedent that a decision made after the officer has complained must necessarily be different.

Further to that, in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), there was an allegation of victimization, and there was no indication, that, after he had complained, there was any further consideration of the matter. He had also asked for reasons for the transfer and they were never supplied.

The court a quo, in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), had interpreted the phrase “without his consent” in the Regulations as meaning that the employee had no right to be heard.

In the case before this Court, it is my view, that, although the employee has a right to be heard, and to make representation against the transfer, the final decision still lies with the employer.

Once it is shown that the employer gave consideration to the need to transfer an employee, and gave that employee a hearing, the employer's decision cannot be held to be improper.

In Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), the Appeal Court went further and pointed out, that, in some cases, an employer can still transfer an employee without giving him or her a hearing, depending on the special circumstances of the case, and that it would be unworkable if every employee were to be consulted before a transfer or decision is made.

In conclusion, I am satisfied, that, even if the appellant in this case had not been given a hearing when the decision to transfer him was first made, once he complained, and the Directorate met and deliberated on the matter, his legitimate expectation to be heard was met, the audi alteram partem rule was complied with, and the decision to transfer him cannot be set aside.

In the result, the appeal is dismissed with costs.

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.The letter of explanation was ...

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

The point is made by counsel for the applicants that the effect of the alteration put in place by the first respondent was to fundamentally alter the structure of the Medical Fund from one based upon the principle of equal contributions from the employer and employee and equal unlimited benefits to a new principle of a scheme based on full recovery.

I accept that the entitlement to the medical aid benefit, on the basis of the equal contribution with the employer and attendant benefits is a condition of service. I do not accept, as contended by counsel for the applicants, that receiving equal benefits with other members where the one pays less than another member is a condition of service.

However, the linking of the benefits to the level of subscriptions paid by the first respondent's members does not affect the terms on which the members of the applicant are afforded employment by their respective employers.

The level and extent of benefits afforded to members is within the discretion of the first respondent and the employer has no input in such assessment.

There is no suggestion that under the new scheme the employer will contribute less than it has been contributing, because if that were the case then the applicants' members would have been on very firm ground in arguing that their conditions of service had been altered.

All the scheme does is to ensure that a contributor obtains services according to the level to which they can contribute in terms of subscriptions. The employer's obligation is not lessened in any manner as he is still obliged to contribute in equal measure to the contributions made by the member.

The condition of service is the entitlement to membership in terms of the contract of employment coupled with the employer's obligation to contribute an equal measure as the employee.

Since the employer does not determine the level of benefits afforded by the first respondent, the fact the benefits are reduced does not alter the conditions of service which remain unchanged. I am unable to find, therefore, that, the scheme has the effect of altering the conditions of service of the first respondent's members....,.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU
Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

At the end of the hearing, the Court dismissed the appeal with costs having determined that it was without merit. It was indicated that the reasons would follow in due course. These are they.The appeal is from the decision of the Labour Court holding that the appellant had no locus standi ...

At the end of the hearing, the Court dismissed the appeal with costs having determined that it was without merit. It was indicated that the reasons would follow in due course.

These are they.

The appeal is from the decision of the Labour Court holding that the appellant had no locus standi in the proceedings before it. The question for determination is whether a universitas personarum at common law can substitute itself for a workers committee created by statute and enforce its statutory rights which can only be enforced by a workers committee in terms of the Labour Act.

The facts are common cause.

The appellant is a voluntary association of former members of the Zimbabwe National Water Authority (ZINWA). On 29 January 2009, while presenting the National Budget for the Year 2009, the acting Minister of Finance announced the Government's decision to decentralise the management of the use of water to local authorities with effect from 1 February 2009. As a result of the decision, management of the use of water in Gweru was transferred to the respondent together with the employment of the appellant's members in the undertaking in terms of section 16(1) of the Labour Act (“the Act”). The respondent engaged the appellant's members on terms and conditions inferior to what they enjoyed at the Zimbabwe National Water Authority (ZINWA) immediately prior to the transfer. The appellant took up a complaint of an unfair labour practice with a labour officer alleging that the respondent's conduct was in breach of section 16(1) of the Labour Act. A certificate of no settlement was issued and the matter was referred to compulsory arbitration. The appellant did not act to represent the case of the employees but acted in their place as the possessor of the rights it sought to vindicate.

In other words, it sued in its name.

On 14 January 2010, the appellant obtained an arbitral award in its favour as against the respondent. The parties approached the arbitrator for the quantification of the award. A hearing was conducted on 7 April 2010 and the arbitrator issued an arbitral award on 30 April to the effect that the award of 14 January 2010 was to be enforced in terms of a table from the Zimbabwe National Water Authority showing the wages and salary rates that the appellant's members enjoyed as at the date of transfer from ZINWA to the Gweru City Council. On 26 May 2010 and 27 July 2010, the arbitrator issued further awards dealing with the implementation of the original award of 14 January 2010. A deadlock ensued between the parties and the arbitrator on the meaning of the awards. On 30 August 2010, the arbitrator issued what he termed an “interpretation award.”

The appellant appealed against the 'interpretation award'. The respondent raised, as a preliminary point, the question whether the appellant had locus standi to sue or be sued.

At the commencement of the hearing, counsel for the respondent submitted that the respondent was no longer challenging the appellant's locus standi. The appeal in that matter was allowed by the Labour Court under judgment no. LC/MD/26/11. Subsequently, the award of 14 January 2010 was quantified by the arbitrator on 9 August 2012. On 22 August 2012, the respondent appealed to the Labour Court seeking an order setting aside the quantification award on the ground that it was a nullity as the appellant was not a legal entity capable of suing and being sued in its own name.

The appellant argued that the Labour Court was functus officio in relation to the locus standi issue. It further argued that the respondent had waived its right to challenge the locus standi of the appellant when it made the concession on the issue at the hearing of the appeal on 14 September 2011. On 20 April 2013, under judgment No. LC/MD/43/13, the Labour Court found that it was not bound by the concession which was wrongly made. It found that its earlier decision was void as the appellant had no locus standi. On this basis, the Labour Court set aside the quantification proceedings.

The appellant was aggrieved by that decision and noted the appeal to the Supreme Court.

The dispute arose from the enforcement of the rights of workers arising from the transfer of an undertaking provided for under section 16 of the Labour Act. The appellant is a universitas personarum, created in terms of its own Constitution, capable of suing and being sued in its own name.

The question is whether a universitas personarum can sue in its own name for the rights of employees provided for under section 16 of the Labour Act.

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO
Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

This is an appeal against a judgment of the Labour Court which upheld an arbitration award made in favour of the respondent. It is necessary to set out the background facts in some detail. In or about December 2010, the Chief Executive of the appellant was looking for an “international GM at Rainbow Towers ...

This is an appeal against a judgment of the Labour Court which upheld an arbitration award made in favour of the respondent. It is necessary to set out the background facts in some detail.

In or about December 2010, the Chief Executive of the appellant was looking for an “international GM at Rainbow Towers Hotel”. She was eager to have a “passionate hotelier of [the respondent's] stature to run this place”. She emailed to enquire as to whether the respondent was interested or whether he could recommend someone.

The respondent was interested. Besides, he responded via email:

“The family, as you know, is keen to move to Zim or to the Region. Despite the opportunity costs associated with my move out of the US, family values have to take precedence.”…,.

Matters moved quickly, and, on 7 December 2010, the appellant, through its Human Resources Manager, addressed a letter of employment to the respondent. It read:

“Dear Richard

RE: APPOINTMENT TO THE POSITION OF GENERAL MANAGER, RAINBOW TOWERS HOTEL & CONFERENCE CENTRE

Following discussions held with you, this letter serves to appoint you to the position of General Manager for Rainbow Hotel and Conference Centre, a unit of Rainbow Tourism Group.

1. EFFECTIVE DATE

Your appointment is effective 1 January 2011.

2. REMUNERATION

See attached schedule.

3. JOB GRADE

This position is Hay (sic) Executive level 3.

4. REPORTING

This position reports to the Chief Executive of Rainbow Tourism Group.

5. PROBATION

You will initially be employed on a three months probationary period ending 30 March 2011.

6. EXECUTIVE EMPLOYMENT CONTRACT

Following successful completion of your probation period you will be on a five (5) year Executive Employment contract which shall be negotiated with yourself along the guidelines of the Employment Conditions laid down in the RTG Executive employment Contracts.

7. ANNUAL LEAVE

Leave will be granted at a rate of 30 days per annum effective only if you have been with the company for 12 months. Leave will not be granted during our busy periods and cash in lieu of leave is normally not permitted. All employees are required to go on leave annually.

8. All employees enjoy a free 24 hours accident insurance cover.

9. During your contract with Rainbow Tourism Group, you will not take any gainful employment with any other organization. Full and total written disclosure of any business that you may be involved in is required before commencement of service.

10. All the conditions of service and code of conduct are available in booklet form and will be given to you on commencement date.

11. Termination of contract after successful completion of probation will be three months' notice on either side.”

The respondent duly commenced employment with the appellant in terms of the letter.

It is common cause that the five year Executive Employment contract referred to in Clause 6 of the letter of employment was never negotiated. By operation of law, therefore, the respondent, upon the expiry of the probationary period on 30 March 2011, became an employee on a contract without limit of time. See section 12(3) of the Labour Act [Chapter 28:01].

Cracks in the employment relationship began to surface in about December 2011.

The respondent's unit had been audited for the period June 2011 to October 2011 and received an adverse report citing 'violation of the provisions of the (appellant's) Motor Vehicle Loan Scheme and seemingly excessive entertainment expenses by management team.'

When asked to respond to certain specific findings in the report, the respondent had avoided a direct response, and, instead, alluded to his conditions of service which he complained had not been met. He also made specific reference to 'the vehicle scheme and the grossing up of [his] salary relative to the monthly repayment dollar'; a benefit allegedly enjoyed by his colleagues, and, in his case, the absence of a housing allowance, 'a benefit that is prevalent to the generality of the Group.'…,.

This led the Chief Executive to respond by email:

“I am worried that I am not on the same wavelength with you. Breach of Company Policy is a serious matter that even touches on your values as the leader in Towers. No amount of explanation can justify, especially if these matters have been covered by an audit.

If you have issues with company policy and your conditions of service, these have to [be] brought out clearly and addressed not as a result of an audit. We cannot have a situation where grievances are now being brought out due to audit. May I also state that no one, including myself, is above the law. When auditors report on their findings, unfortunately, they cannot separate matters in terms of seniority. My answer to your name having been brought up is that this is what Corporate Governance calls for and unfortunately no one can be spared. So, the main issue for me is that just ensure full compliance. I will ensure that I document this issue properly to you to avoid doubt.

In as much as I appreciate your good efforts to bring stability into Rainbow Towers, I cannot be seen condoning non-compliance.”

By letter, the Chief Executive Officer further stated:

“The internal audit report indicated violation of the provisions of the Motor Vehicle Loan Scheme and seemingly excessive entertainment expenses by management team. In your response to the audit issues, you indicated that both the fuel and the entertainment expenses were for business.

Kindly account for all the business that was facilitated by both the fuel and entertainment expenses. May I request that this report be available at my office latest by Tuesday 13 December 2011.”

The requested report was placed before the Acting Chief Executive, Mr Changunda, (“Changunda”) who, on 19 December 2011, requested the respondent:

“To itemize the business that was facilitated by the fuel that you allocated to both your management team and yourself. As you are aware, the motor vehicle loan scheme has no provision for fuel allocation to beneficiaries. Again, for entertainment account, please report on the expenses incurred and business that was facilitated by the activity.”

The respondent was required to reply by 23 December 2011. He did so on 27 December 2011.

Mr Changunda wrote to him on 13 January 2012 expressing his expectation that the respondent would “study and understand company policy and ensure strict adherence of policy provisions in your unit.” He indicated the company's willingness to assist the respondent in facilitating operational efficiencies in order to improve the image of Rainbow Towers.

On 10 April 2012, the respondent was advised of a salary adjustment “for non-NEC category, including for Executive positions, effective from 1st April 2012.” His performance rating for the year 2011 was a D category and he was awarded a 5% salary increase.

On 22 August 2012, Mr Changunda wrote to the respondent in the following terms:

“Dear Richard

YEAR TO DATE RAINBOW TOWERS HOTEL & CONFERENCE CENTRE PERFORMANCE

I write to register my concern with your unit performance. As at July 2012, four key performance indices (revenue, profitability, return on sales and cash credit ration) are below budget, a situation the company cannot sustain.

I have summarized, for your reference, year-to-date performance for your unit (copy attached). The negative position is not sustainable and you are required to turnaround this business.

As a way forward, I expect you to meet August 2012 forecast of USD962,531= revenue and a profitability of USD31,261=. Further, I am giving you two months, being September and October to achieve the forecast figures. The figures are shown below;

(i) September 2012 - revenue of $942,558= and a PBT of $16,175=.

(ii) October 2012 - revenue of $904,040=, which must result in a break-even position.

I will review and discuss your unit performance on a monthly basis (August to October). If this communication is not clear please feel very free to discuss my expectations of your performance with me.

Thank you

P Changunda

ACTING CHIEF EXECUTIVE.”

On the same date, Mr Changunda wrote another letter. This time it related to the respondent's second quarter of 2012 (Q2 2012) performance review. It read, in part:

“You are aware that we have not concluded review of your April to June performance. Ideally this review was due by mid-July 2012. Management has concluded the Q2 report and presented it to the HR Board Committee.

I had no choice but to record a zero for you for Q2 because we have not finalized as I have referred it back to you a number of times and to date not finalized. At your level as General Manager, I expect you to be competent to handle performance reviews.

Going forward, I expect your Q2 review, which will be due by mid-October 2012, to be handed in on time. I expect it to be done properly so that I do not have to refer it back. If you are facing challenges with the performance review systems seek assistance from Human Resources Department or the consultant that the Group worked with during the course of the year.”

On 22 November 2012, the appellant, through its Human Resources Director, wrote to the respondent in the following terms:

“Dear Richard

NOTICE OF TRANSFER

As you are aware, the company is struggling with Rainbow Towers Hotel performance. Indices indicate that the unit performance is getting worse. For your reference find attached the unit cash analysis report indicating that year to date, the net cash adequacy has trebled to US$1.1m negative, rendering this business technically insolvent. The company is convinced this situation may be turned around to profitability.

With this background, it is management's view that you are assigned to a unit without operational problems and acclimatize you to the RTG culture and the Zimbabwean hospitality industry in general.

The company intends to transfer you to A'Zambezi River Lodge, Victoria Falls at the same level and remuneration of Hotel General Manager. It is the intention of the Group to expose you to a resort hotel operation. In addition, in Victoria Falls, the Group has a Resident Manager for Victoria Falls Rainbow Hotel who is on skills development to a hotel General Manager who needs assistance from an experienced General Manager,(sic) a role the company believes you will be able to execute.

Kindly let me have your views by noon on Friday 23 November 2012.”…,.

On 23 November 2012, the appellant received a letter from the respondent's legal practitioners. It was therein alleged that the respondent's employment contract specifically appointed him to the position of General Manager, Rainbow Towers Hotel and Conference Centre and that no provision was made therein for transfer within the Group. In addition, the appellant, so it was alleged, was aware that the respondent's wife required specialist medical care and facilities which are not available in Victoria Falls.

It was advised that the respondent could not accept the transfer.

On 27 November 2012, the appellant's Human Resources Director responded pointing out that while note was taken of the respondent's family circumstances, the appellant's assessment of the business was such that there was need for the transfer and that the respondent would be required to transfer on 1 January 2013. Reference was made to his conditions of employment which it was alleged were contained in the booklet referred to in clause 10 of the employment contract set out above. He was to use the remainder of his working days in November to do a 'handover take over' with the Operations Manager and he needed not report for duty in December.

On 28 November 2012, a further letter was written to the respondent by the appellant. In that letter, the Human Resources Manager referred to 'follow up discussions' with the respondent and confirmed the terms of the transfer. The respondent was advised of the availability, at Victoria Falls, of a residence for him and a 'disturbance allowance' to be paid to him 'through the January pay run.'

Thereafter, on 29 November 2012, a circular to 'all Associates' advised of the pending transfers of the respondent to A'Zambezi Victoria Falls, as General Manager, and Tichawona Shumba from A'Zambezi to General Manager - ICC both effective 1 January 2013.

On 30 November 2012, the respondent, through his legal practitioners, lodged a claim of constructive dismissal with the Labour Officer.

The letter was not copied to the appellant.

The respondent did not report for duty on 1 January 2013.

On 15 January 2013, the respondent's legal practitioners wrote to the appellant's legal practitioners as follows:

“Re: RICHARD NKOMO RAINBOW TOURISM GROUP

We confirm that subsequent to the reference to arbitration this morning, the disciplinary hearing scheduled for this afternoon has been rescheduled to Friday the 18th January at 11.15a.m. We await the requested documents.”…,.

However, on 30 January 2013, when the notice of the disciplinary hearing was served on the respondent's legal practitioners, the latter wrote to the appellant's legal practitioners:

“…,. Your client subsequently delivered a Notice of Hearing to ours. Our client ceased to be an employee of yours when he was constructively dismissed by yours, and accordingly cannot be dismissed by yours…,.”

The disciplinary hearing was held by the appellant on 1 February 2013. The charge was:

Absence from work for 5 or more consecutive days in that the respondent had failed to report for duty on 1 January 2013.

The respondent did not attend the hearing but was advised by the Designated Officer, in a letter dated 5 February 2013, that he had been found guilty of misconduct and was invited to tender his 'submissions and evidence for purposes of mitigation' by Friday February 15, 2013.

The arbitration referred to above took place on 12 March 2013. The arbitrator ordered:

“That the claim of constructive dismissal be upheld and the respondent is ordered to reinstate the claimant.”

An appeal by the appellant to the Labour Court was dismissed.

THE ISSUES ON APPEAL

As was submitted on behalf of the respondent, the nub of the dispute was whether or not the court a quo was correct in finding that the respondent terminated his employment with the appellant as a result of the latter wrongfully making continued employment intolerable for him. If the answer to this enquiry is in the positive, then the termination falls within the provisions of section 12B(3) of the Labour Act [Chapter 28:01] and the respondent was unfairly dismissed.

Section 12B(3) of the Labour Act [Chapter 28:01] provides:

“(3) An employee is deemed to have been unfairly dismissed –

(a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;”

I propose to divide the enquiry into two parts, namely,:-

(i) Whether the appellant's conduct was such that it deliberately made employment intolerable for the respondent; and

(ii) Whether the respondent terminated his employment with the appellant because of such conduct.

WHETHER THE APPELLANT'S CONDUCT WAS SUCH THAT IT DELIBERATELY MADE EMPLOYMENT INTOLERABLE FOR THE RESPONDENT;

The stance taken by the appellant was that the respondent was its employee up to the end of January 2013. This is evidenced by his conduct in attending at work during November to do the handover takeover exercise as instructed by the appellant, the receipt of his salary and allowances, including cellphone allowances, up to the end of January 2013, the request, as late as 15 January 2013, for documents required to prepare for the disciplinary hearing, and the fact that at no stage had the respondent tendered his resignation from employment. Therefore, so it was submitted, by not reporting for duty on the 1st January 2013 the employee committed the misconduct charged and the disciplinary committee had correctly found him guilty as charged.

It was also submitted, on behalf of the appellant, that the respondent, like all other Executive employees, was bound by the transferability clause in the Code of Conduct governing the appellant and its employees.

On behalf of the respondent, however, it was contended that because the appellant had not given to him the booklet mentioned in clause 10 of the agreement…., an omission which was contrary to the peremptory provisions of section 12(2)(d) of the Labour Act [Chapter 28:01], he was not bound by its terms and was not transferable. Accordingly, by transferring him to Victoria Falls, in breach of the terms of his contract of employment (which terms he alleged were contained in the letter of employment)…, the appellant had made continued employment with it intolerable.

The letter of transfer explained, in clear terms, why the respondent was being transferred. The correspondence set out above clearly showed that the respondent was not performing up to standard and that under his watch the hotel had reached a state of near insolvency. This state of affairs covered a period of two years after the appellant was hired to 'turn around' the fortunes of the hotel. In these circumstances, I venture to suggest that an employer would be within its rights to terminate the employment contract on notice if so minded.

However, the appellant did not adopt that course.

The transfer was a lateral one to the A'Zambezi River Lodge which is in the tourism hub of Victoria Falls and which was encountering no operational problems. That posting, the appellant explained, would allow the respondent both to acquaint himself with the Zimbabwe hospitality industry and to share his expertise with the manager of the Rainbow Hotel, Victoria Falls. There was no reduction of benefits.

What then about the transfer would make the respondent's continued employment intolerable?

From the arguments presented by the respondent, the following are his objections to the transfer;

(i) First, he was not transferable as he was employed to the specific post of General Manager of the Rainbow Towers. That amounted to a stipulation that he was to work there and nowhere else in keeping with the principles set out in Guruva v Traffic Safety Council of Zimbabwe 2009 (1) ZLR 58…,.

(ii) Secondly, his wife is an invalid and is in need of specialist medical care which is only available in Harare and the appellant was aware of that fact.

Accordingly, the transfer made his continued employment with the appellant intolerable.

Regarding the first objection, in view of the finding above as to the nature of the contract between the parties, namely, a contract without limit of time, I consider that the respondent was bound by the general rules of transferability in the organization. Since no further contract was negotiated, there cannot be read into that contract, an appointment to a specific post, for a specific period and at a specific place only.

The following words by CHEDA JA in Guruva v Traffic Safety Council of Zimbabwe 2009 (1) ZLR 58 are applicable here:

“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer's discretion in determining which employee should be transferred and to which point of the employer's operations is not to be readily interfered with except for good cause shown. Good cause in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimization of the employee, and any disadvantage. The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant's objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer wherever such services are required, unless the employment contract stipulates that he is to be employed and remain at a specific place only. See Ngema & Anor v Minister of Justice, Kwazulu & Anor 1992 (4) SA 349 (N).

While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied that, since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision, the requirement of the audi alteram partem rule was complied with.”

The respondent was the General Manager of the Rainbow Towers and it seems childish to submit, as he did, that he was ignorant of the Code because it was not given to him. In his position, he would have been responsible for drawing the attention of subordinate employees to the Code of Conduct. It would be an affront to intelligence to say that he remained, and was content to remain, blissfully unaware of its contents throughout the period of his employment with the appellant - which spanned two years. The same would, in my opinion, apply to any Code applicable to Executives if that were applicable to the respondent.

Accordingly, the respondent cannot take refuge in the defence raised to the effect that: 'I am not bound by it because I did not see it because you did not give it to me.'

As to the second objection, there is nothing in the record, either of the respondent's recruitment or in his employment with the appellant, to suggest that the respondent's wife was an invalid, and, still less, that the appellant was aware of it.

When the respondent accepted the offer to take up the position offered by the appellant, he made mention of the opportunity costs which could arise on his leaving the United States. No mention was made of the availability or otherwise of medical and/or specialist facilities for his wife. His later complaint, regarding his conditions of service, did not include his wife or her needs. I mention these apparently trifling details because of a fruitless search of the record for any suggestion that the appellant might have been aware of the alleged medical condition of the respondent's wife. The only reference to the illness of the respondent's wife was made before the arbitrator where the respondent indicated that a former Director of 'the Sheraton' was aware of his wife's illness.

In any event, unless his contract specifically provided (which it did not) for his employment in Harare and no other location (see Guruva v Traffic Safety Council of Zimbabwe 2009 (1) ZLR 58) because of his wife's medical condition, that condition could not restrict the appellant in the exercise of its right to transfer the respondent as it deemed fit.

The respondent, as an employee, was bound by the transferability clause in the appellant's Code of Conduct. Any difficulties which he had with the transfer should have been discussed with the appellant when he was given an opportunity to do so. Instead, when asked for his views, he chose not to discuss the matter personally with his employers but through legal practitioners who indicated that he could not accept the transfer and directed that all future correspondence should be with themselves.

I therefore agree with the submission by the appellant that the respondent did not discharge the onus on him to establish that the appellant's conduct was such that it made the respondent's employment with the appellant intolerable.

HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS
Ruled By: NDOU J

The applicant approached this court, under a certificate of urgency, seeking a provisional order in the following terms-“Interim Relief granted1. That the transfer of applicant to Murewa be suspended until this application is finalized.2. That if applicant is already in Murewa he be returned to Beitbridge until the application is finalized.Final Order1. That the transfer of applicant to Murewa ...

The applicant approached this court, under a certificate of urgency, seeking a provisional order in the following terms-

“Interim Relief granted

1. That the transfer of applicant to Murewa be suspended until this application is finalized.

2. That if applicant is already in Murewa he be returned to Beitbridge until the application is finalized.

Final Order

1. That the transfer of applicant to Murewa be and is hereby reversed.

2. That the respondents reconsider recommendations and adoption [of] the applicant's transfer from Ministry of Home Affairs to Ministry of Justice and Legal Affairs respectively.

3. That if the respondents oppose the application, costs on a client attorney be ordered against the officer that opposes personally.”

The salient facts of the matter are the following.

The applicant is a police officer holding the rank of Assistant Inspector. For a period of around six (6) years the applicant had been seconded to the Beitbridge Public Prosecutor's office as a public prosecutor. During this period he studied for a law degree through distance education via the University of South Africa. He made quite some progress towards the attainment of his law degree. This encouraged him to seek a permanent transfer to the Ministry of Justice and Legal Affairs. Whilst his application for lateral transfer was under consideration, he was transferred from the Public Prosecutor's office to the Zimbabwe Republic Police. He suspects that one of the magistrates in Beitbridge authored the termination of his secondment. His secondment was terminated on 26 June 2009. In July 2009 the applicant went on vacational leave and was due to report back in September 2009. He did not do so. He states that he fell ill and was on sick leave until 30 November 2009. Whilst he was on sick leave he was transferred to Murewa. He was also arrested for being absent without official leave. He was detained for three days at Beitbridge Police cells. He was taken to Murewa where he was released without charge. He, thereafter, made his own investigations and he managed, somehow, to lay his hands to a memorandum written by the first respondent to the second respondent recommending his transfer.

The applicant does not explain how he managed to get a copy of this memorandum.

Having read the contents of this memorandum he decided to institute this chamber application.

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA
Ruled By: CHEDA AJ

The applicant was appointed by the first respondent, initially as a lecturer, then later as a Dean of Studies in the same institution. While she was in occupation of this position, on the 12th day of December 2012, she received a letter from the second respondent, who is Acting Vice-Chancellor of the first respondent, advising her ...

The applicant was appointed by the first respondent, initially as a lecturer, then later as a Dean of Studies in the same institution.

While she was in occupation of this position, on the 12^th day of December 2012, she received a letter from the second respondent, who is Acting Vice-Chancellor of the first respondent, advising her that the second respondent intended to appoint certain persons to the position of Acting Dean of Agricultural Sciences and Acting Dean of Humanities. She says such appointments are a breach of the express terms, alternatively, the implied terms of her contract with the first respondent.

She said her letter of appointment, as Dean of Studies, granted her authority over the Faculties of Agricultural Sciences and Humanities and Social Studies, and the effect of the purported appointments will limit the scope of her authority insofar as she will only have oversight over certain departments within the Faculty of Humanities.

She also pointed out that in terms of Clause 5.1 of the Faculty of Governance Ordinance 23, the Dean is the Chief Academic, Administrative and Finance Officer for the Faculty. She went on to state that the appointments are unlawful as the first respondent is a statutory body and its members are bound by the provisions of the Lupane State University Act [Chapter 22:25] and appointments made in contravention of the Lupane State University Act [Chapter 22:25] are invalid. She said the second respondent does not have the power to make the appointments and is acting ultra vires the provisions of the Lupane State University Act [Chapter 22:25]. She said such powers are held by the Senate.

Prior to this, she had once been suspended, and Acting Deans were appointed, but when she challenged the appointments she was reinstated and the appointments of Acting Deans were set aside, but despite a memorandum to that effect they were allowed to continue in occupation of the offices they had been granted and enjoying the benefits that accrued to those positions. She instituted a court application for contempt of court which is still pending under case number HC2311/12. She complained that she will suffer prejudice as the purported appointments of Acting Deans will unlawfully usurp certain of her powers and responsibilities as Dean of Studies and affect her ability to perform her duties.

She seeks, in a provisional order, that the second respondent be interdicted from making those appointments, and that if the appointments have been made, that such persons be removed from those appointments.

The second respondent, who deposed to the opposing affidavit on behalf of the first respondent by virtue of his position as its Acting Vice Chancellor, said only the first respondent should have been sued. He said the applicant has no locus standi to challenge the appointments of Acting Deans and it was not within her right to challenge the appointments. He said she had not established that she has a prima facie right or that any of her rights have been violated and that there is no other remedy. He said since the appointments have been effected she cannot use an interdict to address perceived past wrongs. He went on to state that the applicant will not suffer any financial prejudice as she will continue to receive her pay in terms of her contract of employment. He prayed for the dismissal of the urgent application with costs.

The second respondent also submitted that the Lupane State University Act [Chapter 22:25] does not deal with the smooth running of the University such as interim measures and appointments of persons in acting capacities.

After hearing both parties, I make the following observations:

1. The Acting Vice Chancellor had to be included as the appointments were made by him.

2. The fact that the Acting Deans continue to occupy offices allocated to them does not affect or violate the applicant's rights. She does not own those offices.

3. The fact that the 1^st respondent has advanced some persons to positions of Acting Deans does not violate the applicant's rights.

4. The fact that the appointments of the Acting Deans may not have been made in accordance with the provisions of the University Act does not violate the applicant's rights.

5. In my view, what violates the applicant's rights is the allocation of responsibilities, that is, if the appointed Acting Deans interfere with the rights and powers of the applicant to carry out her officially allocated functions in terms of her contract…,.

It is clear from the papers that the applicant is concerned with the possible interference of her authority to carry out her functions as Dean of Studies. Her concern should be limited to that and that only….,. The main grievance of the applicant is clearly stated in paragraph 5(e) of her founding affidavit where she says:

“I will suffer prejudice insofar or as the purported appointments will unlawfully usurp certain of my powers and responsibilities as Dean of Studies and affect my ability to perform my duties.”

In my view, the following order grants her the relief she seeks:

Order

1. The first and second respondents are interdicted from interfering with or usurping the applicant's powers, authority and functions granted to her by the terms of her contract as Dean of Studies.

2. In the event that such powers have been removed or altered they must be restored.

3. The respondents are to pay the cost of this application.

HB106-14 : MIRIRAI SHUMBA vs MINISTER OF JUSTICE AND LEGAL AFFAIRS and THE DIRECTOR OF PUBLIC PROSECUTIONS and THE ATTORNEY GENERAL'S OFFICE CIVIL DIVISION
Ruled By: MOYO J

The applicant filed an application in terms of section 3 of the Administrative Justice Act [Chapter 10:28]. In this application, the applicant seeks an order in the following manner:- i) An order setting aside the decision of the respondent to transfer the applicant without giving him an opportunity to be heard. ii) An order setting aside the decision ...

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

The appeal intended to be made to the Supreme Court should leave be granted would have no prospects of success. The application is without merit. The facts show that the applicant agreed with the respondent that a new contract of employment be entered into taking into account changes brought about by the dollarization of the ...

The appeal intended to be made to the Supreme Court should leave be granted would have no prospects of success.

The application is without merit.

The facts show that the applicant agreed with the respondent that a new contract of employment be entered into taking into account changes brought about by the dollarization of the economy in March 2009. Both parties understood that the services rendered by the applicant in the performance of his work with the respondent needed to be valued and paid in United States Dollars.

The applicant received the document containing the proposed terms and conditions of the new contract of employment. The new contract made no reference to certain allowances. The applicant had three days within which to study the terms and conditions on which the new contract was being offered. He then had to decide whether to accept or reject the offer.

After careful consideration of the terms and conditions of the new contract, the applicant decided to accept them and signed the document. He said he decided to sign the document because he wanted the money. The applicant knew that by signing the document he was entering into a new contract of employment with the respondent. The applicant was a Purchasing Manager. He knew the legal effect of his actions. The conduct of the parties brought about the mutual termination of the old contract of employment. The argument accepted by the arbitrator that the respondent unilaterally varied the old contract of employment had no basis in the facts.

There is a principle of law to the effect that employment conditions do not remain static. Contracts of employment will respond to the changes in the fortunes of business. Chirasasa v Nhamo N.O. & Anor 2003 (2) ZLR 206 (S)…,.

It was not difficult for the applicant to appreciate why there was need for the changes that took place. If the parties appreciated that fact and freely acted in accordance with its demands, there can be no scope for a court to interfere with their conduct.

In the light of the proven circumstances in which the applicant entered into the new contract, the allegation that he signed the document under duress could not be proved.

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

In order to appreciate the issues that fall for determination in this appeal, it is necessary to set out in some detail the background giving rise to the present proceedings. The appellant was employed by the Makoni Rural District Council, (“the respondent”). She was stationed at the council offices in Rusape. She was married and ...

In order to appreciate the issues that fall for determination in this appeal, it is necessary to set out in some detail the background giving rise to the present proceedings.

The appellant was employed by the Makoni Rural District Council, (“the respondent”). She was stationed at the council offices in Rusape. She was married and had children. Her family was running a business in Rusape.

Her problems with the respondent appear to have started on or about 9 October 2003, when she absented herself from work and allegedly used a Council computer to transact personal business. By letter dated 10 October 2003, the appellant wrote a letter to the Council Treasurer in the following terms:

“…, I am sorry for using council computer for private business documents and absence from work. I had valid reasons which I had shared and had been given permission by the Deputy Treasurer, Mrs S Mtisi, that my child, Fadzai was not feeling well….,.”

On 11 October 2003, the Council Treasurer wrote to the appellant accepting the apology but warning her not to do the same thing and to ensure that leave days are authorised by the Chief Executive Officer of council before such leave was taken.

On 14 October 2003, Mrs Mtisi, the Deputy Council Treasurer, wrote to the appellant denying that she had ever authorised her to go away.

It is not clear what happened thereafter, but on 31 March 2004, the appellant wrote a letter to the Chief Executive Officer. The letter was in the following terms:-

“I apologise for all what I did wrong. I promise to be trustworthy, not to be lazy, not to tell lies and to notify my immediate supervisor whenever I will be going out. I will be very grateful if you consider my apology.”

In the meantime, the appellant had been transferred from the Finance Department to the Health Department. Both of these departments are located within the Rusape Town Council area.

On 3 February 2005, one C.Z Doto, a community sister, wrote to the appellant asking her to write a report on her absence from duty without approval. By letter dated 4 February 2005, the appellant responded in the following terms:-

“I apologise that I was absent from duty on 3 February 2005. What happened is, I received an emergency at about 4 to 12 in the evening that my uncle was seriously ill at Honde Valley and I had to collect him to Harare.

I left a note at home that maybe my line 091 807 018 will not have network that Mr Sagandira will report of the emergency at my workplace…,.”

On 8 February 2005, the appellant held a meeting with the respondent's Chief Executive Officer, E. M Pise. Following that meeting, Mr Pise wrote to the appellant as follows:-

“Reference is made to my meeting with you over your failure to report for work and absconding from duty. You have the habit of leaving office without authority and we believe you need to be relocated out of Rusape.

You are therefore advised that you have been transferred to Inyati Mine with effect from 14 February 2005…,.”

On 11 February 2005, the appellant responded to the above letter expressing her disappointment at the turn of events. In the letter, the appellant stated:-

“I have noted with great displeasure that my excuse for attending the funeral was unaccepted and that your decision to transfer me to Inyathi Mine was based on false allegations. You were informed that I went out for business instead of the said illness that later turned into a funeral…,.

Chief, as you have already concluded, I have no objection to your instruction that I be transferred to the abovementioned station. You have all the rights to give whatever punishment you think is worthy. May I point to you that I am going to Inyati Mine with groaning because I don't see where I wronged you. You have, on several times, tried to be on a fault finding mission on my performance of duty but your efforts have been in vain because the truth shall set me free.

The truth about my transfer, if I may put it across to you, is that your advisors are not happy with my husband's business and in all instances they think whenever I go out they think I would have gone to manage my private business yet I will be attending to crucial social problems…,.

You did not bother to seek audience with me to verify the validity of the allegations against me and because of this I strongly feel that you want to get rid of me from this organisation. Because by transferring me to Inyati Mine you know that I will lose contact with my family and this may lead to the disintegration of my family and to make my children suffer and look miserable during my absence.

Once again, I want to reiterate that I am not pleased to go to Inyati Mine although I am going to comply with your instructions.”

It is common cause the appellant did not report at Inyati on 14 February 2005. Instead, she wrote what she called an appeal against the transfer. In the “appeal” she stated that the Chief Executive Officer had “no basis to punish” her as the allegations were baseless and malicious. She also stated that it was Government policy that couples should not be separated to reduce the incidence of HIV, minimise costs, and obviate separation.

On the same day, Mr Pise wrote back to the appellant in the following terms:-

“…,. You are hereby advised that your appeal has been dismissed as evidence from your file clearly indicates that you have failed to work at our headquarters….,.

We want to hear that you have taken up your position at Inyati today 14/02/2005…,.”

Following a further appeal for him to reconsider his decision to transfer her, the Chief Executive Officer, on the same day, wrote to the appellant advising of Council's decision to suspend her, without pay, pending a hearing to take place on 21 February 2005. The suspension was said to be in terms of section 12B2(b)(i) and(ii) as read with section 35 of the Council Conditions of Service.

On 21 February 2005, the appellant appeared before what was termed a Works Council hearing.

The hearing committee consisted of Mr Pise, who was Chairman; Mr J Mugari, a member of the workers' committee; Miss N Bofu, a Council employee charged with minuting the proceedings; and the appellant.

In its determination, the committee remarked:

“It has been proved beyond any shadow of doubt that Mrs D Sagandira has the habit of defying authority and the cases of absence from work without permission point to this, and, in addition, her failure to transfer to Inyati Mine when instructed to do so, so (sic) is another case in point. It is not in dispute that Mrs D Sagandira failed to follow instruction to transfer. She at first agreed to transfer and later changed her mind. It should be pointed out that they operate a family business within Rusape where she frequently goes leaving the office unattended. She has been transferred before from the Finance Department and this did not help. She has remained stubborn and does not want to obey orders. Given the above, the said employee is dismissed with effect from 14 February 2005…,.”

Dissatisfied, the appellant took the matter up with a Labour Officer who referred the matter to an arbitrator. The arbitrator upheld the dismissal. The appellant then appealed to the Labour Court. The Labour Court found that her failure to transfer to Inyati Mine amounted to disobedience. The court also found nothing wrong with the composition of the disciplinary authority. In the result, the court dismissed the appeal with no order as to costs.

It is against that order the appellant now appeals to this Court.

In her grounds of appeal, the appellant attacks the decision of the court a quo on the basis that the court misdirected itself and erred in three respects;

(i) Firstly, that the court a quo failed to appreciate that the order to transfer was punitive and therefore not lawful.

(ii) Secondly, that the appellant was not consulted before the decision to transfer her was made.

(iii) Thirdly, that the Chief Executive Officer was an interested party; he was the complainant, charged the appellant, set the matter down, prosecuted, and chaired the meeting before finding the appellant guilty of misconduct in violation of the nemo judex principle.

In her heads of argument, the appellant submitted that the decision to transfer her was not an ordinary transfer decided by an employer in order to maximise operational efficiency. The transfer was to punish her on account of perceived misconduct on her part, and, in particular, absenteeism. As no hearing to determine the misconduct was conducted, the transfer in these circumstances was unlawful. Further, her personal circumstances were not taken into account. Inyati Mine is fifty kilometres from Rusape. The mine itself is no longer operational and the greater portion of the road to the mine is on gravel….,.

In its submissions, the respondent rejected the suggestion that the transfer was unlawful. That the appellant had absented herself from duty without authority was common cause. In the circumstances, the respondent was within its rights to transfer the appellant as there is no law which makes it mandatory for an employer to hold a disciplinary hearing first before taking such a course. Considering the appellant's conduct, which was well documented, the decision to transfer her cannot, in these circumstances, be said to be unlawful. In the respondent's opinion, the Chief Executive Officer exercised restraint. Whilst he had the power to suspend the appellant and institute disciplinary proceedings, he decided, instead, to transfer her to Inyati Mine - some fifty kilometres away. Whilst it was known that the appellant was married, she could commute. The appellant was better off being relocated than being dismissed.

In the circumstances, the respondent submitted that the transfer cannot be described as unlawful.

Taking into account the submissions made by both parties, it seems to me that there are three issues that arise for determination, although the second and third issues depend on the resolution of the first.

(i) The first issue is whether the transfer was, in the circumstances, unlawful. If it was, then that is the end of the matter and this appeal must be decided in favour of the appellant. In the event that a finding is made that the transfer was lawful, the issues that would follow are whether, firstly, the decision to transfer her is unlawful on account of the failure by the respondent to consult her and take into account her personal circumstances.

(ii) Secondly, whether the involvement of the respondents' Chief Executive Officer in the proceedings violated the nemo judex principle.

I proceed to consider the first issue.

Before doing so, it seems to me pertinent to note that, on the papers, it is not clear in what capacity exactly the appellant was to be employed at Inyati Mine. It is also not clear what operations the respondent had at the mine. However, before the penalty of dismissal was pronounced during the disciplinary hearing, the Works Committee Chairperson present exhorted the respondent to reconsider its decision to transfer the appellant to Inyati Mine and instead transfer her to other Council departments within Rusape, or, alternatively, to other Council offices at Nyazura or Headlands which were nearer and situated along the main tarred road where transport was not a problem.

I revert to the question whether the transfer of the appellant was, in the circumstances, unlawful.

In terms of the common law, an employer has the right to unilaterally vary the terms of employment, such as the duties being done by the employee, the location of work or department. This may be necessary, inter alia, to re-organise the operations of the employer, to facilitate disciplinary investigations; provided always that such variation is not substantially different from the contract job description or does not result in the substantial downgrading of the status and dignity of the employee or is in breach of a legitimate expectation of the employee – Labour Employment Law in Zimbabwe, Relations of work under Neo-Colonial Capitalism, M GWISAI…,.

A temporary transfer to facilitate investigations into possible criminal activities is lawful – Chimenya v Associated Textiles Limited SC201-94.

In Director of Works & Anor v Nyasulu & Ors, 2002 (1) ZLR 658 (S), the respondents, who were employed as Farm Managers by the City of Harare, received warning letters from the appellant based on allegations of unsatisfactory performance of their duties. They refused to sign the letters as they were not sure what the consequences of signing would be. Their immediate supervisor regarded their failure to sign as disrespectful.

Subsequently, the respondents received letters transferring them elsewhere in the service of the Council. The respondents applied to the High Court for an order setting aside the transfers on the basis that the transfers were punitive. The High Court agreed and set the transfers aside. The City of Harare unsuccessfully appealed against that determination.

In dismissing the appeal, this Court, per ZIYAMBI JA, remarked…,:-

“I am in respectful agreement with both conclusions reached by the learned judge. It is, therefore, my view that the learned judge was correct in holding that the rules of natural justice had not been complied with in that the respondents were not afforded a hearing before the punitive measures of warnings and transfers were taken against them…,.”

And at p665 A, the learned judge continued:-

“As the learned judge remarked, even if the penalty of transfer had not been imposed, the appellants would have had an entitlement to be heard before the issue of the letters of warning.”

The authorities to which attention has just been drawn emphasise two important principles in our labour law. These are;

(i) Firstly, that an employer does have the authority to transfer an employee in order, inter alia, to enhance operational efficiency or to facilitate investigations.

(ii) Secondly, an employer, whatever the circumstances, has no right to invoke a transfer as a punitive measure outside of the disciplinary framework.

It must always be remembered that a transfer can be ordered as part of the penalty imposed on an employee found guilty of misconduct.

In this case, there can be no doubt that the respondent, and, in particular its Chief Executive Officer, believed that the appellant was guilty of absenteeism. The appellant had indeed been moved from the Finance Department to the Health Department for that reason. That transfer was within Council premises in the same town. No-one complained.

The transfer to Inyati Mine was different.

This was a transfer of a married woman with school-going children. The transfer obviously necessitated her being away from her husband, and, in particular, minor children. Inyati Mine is fifty kilometres from Rusape. It is not easily accessible. Whilst it was once a bustling mining centre, its operations as a mine ceased years ago. Transport to and from Inyati Mine, mostly on a gravel road, is not easy. It is not even clear on the papers what position the appellant was to assume on reporting for duty there or where she was to stay. Whilst the decision to transfer her was made, no detail is apparent on the papers as to what was to happen once she got there.

In my view, once the respondent had formed the opinion that the appellant was misconducting herself, a disciplinary hearing should have been held to determine whether she was, in fact, guilty. After all, whilst the appellant admitted being absent on the occasions cited in the correspondence, she never admitted, at any stage, that she did not have a lawful excuse. At one stage, she made it clear she had gone to Honde Valley to collect a sick uncle whom she took to Harare. The uncle subsequently died. When she absented herself in order to attend the funeral, she was regarded as being absent without lawful excuse and was made to write a report on such absenteeism.

In a situation such as that, in which the respondent found itself, proper disciplinary proceedings should have been conducted. In the event that it was found that the appellant had no lawful excuse to be absent, she could have, as part of the penalty, been transferred to any other department of the appellant. In proceeding to transfer the appellant in the manner it did, the respondent fell foul of the audi alteram principle. It found the appellant culpable without holding any disciplinary proceedings, and, in the result, imposed, as a penalty, an order that the appellant transfers to a place some fifty kilometres away where transport was difficult. The inference that this transfer was punitive, or intended to be a punishment, is inescapable.

It seems to me an opportune time to emphasize that whilst transfers effected in the ordinary course of operations are appropriate, transfers that are punitive, based purely on perceived misconduct on the part of the employee, are not acceptable as they are unlawful. A punitive measure can only be predicated on a proper finding of culpability following proper disciplinary proceedings.

I am satisfied that the order that the appellant transfers to Inyati Mine was, in the circumstances of this case, punitive, and therefore unlawful.

Further, I am satisfied that, given the appellant's circumstances, her personal wishes, and views should have been taken into account before the ultimate decision to relocate her some fifty kilometres away at some disused mine premises was made. See Director of Works & Anor v Nyasulu & Ors, 2002 (1) ZLR 658 (S)….,.

In the result, the appeal must succeed. It is accordingly ordered as follows:-

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted:-

“(a) The decision of the arbitrator of 3 November 2006 confirming the dismissal of the appellant is set aside.

(b) It is ordered that the appellant be reinstated to her position with the respondent without loss of salary or benefits. Should re-instatement no longer be possible, the respondent is to pay to the appellant such damages as may be agreed upon or, that failing, as are, upon application, quantified by this Court.

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court which upheld the arbitration award overturning the decision of the disciplinary committee dismissing the four respondents from employment. There is no material dispute of facts as most issues forming the basis of this appeal are common cause. The undisputed facts are that the ...

There is no material dispute of facts as most issues forming the basis of this appeal are common cause. The undisputed facts are that the respondents were employed as Chief Designated Agents by the appellant. On 16 August 2012, the appellant gave written notices to transfer the respondents to various work stations in the country with effect from 1 January 2013.

The envisaged transfers were in line with the employer's policy and practice to rotate designated agents after serving in a particular area for a given period. This was meant to promote effectiveness, accountability and exposure of employees to new challenges.

The notice provided the respondents with at least three (3) months grace period for them to wind up their business and personal affairs in Harare for a smooth transfer to their respective new work stations.

The respondents were however disturbed and not amused by the impending transfers. They thus vigorously objected to the transfers citing personal hardship and inconvenience. In their concerted effort to resist and abort the intended transfers they roped in the services of lawyers.

Despite the spirited resistance and intervention of lawyers, the appellant insisted on the transfers as ordered. The respondents were however equally adamant and unmoved as they steadfastly refused to obey the employer's lawful orders given in accordance with their respective contracts of employment.

The net result was that when the date of compliance came to pass all the four respondents were not at their new work stations. Their failure to transfer, as ordered, was in open defiance of the employer's lawful orders given in terms of their respective contracts of employment.

The disobedience was wilful and deliberate.

A stalemate having been reached, the appellant charged the respondents with wilful disobedience to a lawful order in contravention of section 4(b) of the National Employment Code of Conduct, S.I.15 of 2006, alternatively, any act or omission inconsistent with the fulfilment of the express or implied conditions of his or her employment contract in contravention of section 4(a) of the National Employment Code of Conduct, S.I.15 of 2006.

Both offences constitute serious dismissible acts of misconduct.

The disciplinary committee found all the four respondents guilty as charged and ordered their dismissal from employment. The dismissals were premised on the finding that the aggravating features outweighed the mitigating factors.

Aggrieved by both conviction and penalty, the respondents referred the matter for conciliation in terms of Part XII of the Labour Act [Chapter 28:01] without success. The matter was then referred for arbitration in terms of section 12B(4) of the Labour Act [Chapter 28:01].

The arbitrator confirmed the convictions but reduced the penalties from dismissal to final written warnings on the basis that the mitigating factors outweighed the aggravating features.

Dissatisfied with the arbitration award, the appellant appealed to the Labour Court which dismissed the appeal and upheld the arbitration award hence this appeal.

The appellant's complaint is that both the Labour Court and the arbitrator misdirected themselves and fell into error when they reversed the disciplinary committee's determination in the absence of any error or misdirection.

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

INTERPRETATION OF SECTION 6(1)(D) OF THE LABOUR ACT In its ground of appeal no. 4, the appellant raised the issue of the interpretation of section 6(1)(d) of the Labour Act [Chapter 28:01]. The court a quo held that the appellant took advantage of its own failure to provide security for the respondents thereby exposing them to ...

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

HMA07-17 : CHARLES MASANGO and GLORIA MASAWI vs MINISTER OF PRIMARY & SECONDARY EDUCATION N.O. and PUBLIC SERVICE COMMISSION and DISTRICT SCHOOLS INSPECTOR N.O.and HEADMASTER, CHINGOMA HIGH SCHOOL
Ruled By: MAFUSIRE J

The applicants were husband and wife. They were teachers at Chingoma High School, Mberengwa District, Midlands Province [“Chingoma”]. Between them they had clocked twenty six years of continuous service at the school: the first applicant, the husband, having done ten years, and the second applicant, the wife, sixteen years. These are appreciable lengths of ...

The applicants were husband and wife. They were teachers at Chingoma High School, Mberengwa District, Midlands Province [“Chingoma”]. Between them they had clocked twenty six years of continuous service at the school: the first applicant, the husband, having done ten years, and the second applicant, the wife, sixteen years. These are appreciable lengths of service by all accounts. Ordinarily, you do not just uproot someone like that from their station against their will without very good reasons.

The applicants were uprooted.

A problem arose between the applicants and a fellow teacher at the school - a lady. She complained of prolonged sexual harassment or abuse by the first applicant. All three were in the same Department. The second applicant was the Head. She got entangled, undoubtedly driven by marital interests. The complainant also raised multiple complaints against the second applicant. She reported, among other things, that the second applicant had stopped supervising her work. She said the second applicant was sending her stressful telephone messages. She said on one occasion the second applicant had hit her with an elbow. On another, she had spat in her face.

The school convened a disciplinary enquiry. The applicants were found guilty. A uniform penalty was imposed against both. It was threefold: a fine of $200= each, to be recovered from the salaries; a transfer from Chingoma High School to any school within the district; and a reprimand.

The disciplinary proceedings were concluded in November 2016. The outcome was communicated to the applicants by letters dated 13 January 2017. However, these were only served on the applicants on 30 January 2017. The respondents argued that that was when the clock began to tick if the applicants wished to apply on an urgent basis.

In February 2017, the respondents set in motion the process to transfer the applicants, in execution of the sentence. Among other things, standard term transfer forms were served on them. But the reason stated on those forms was patently incorrect, namely, that the transfers were pursuant to some request previously made by the applicants. In the urgent chamber application, the applicants initially pounced on this mistake. However, counsel for the applicants eventually conceded that the mistake was not material.

The applicants would also complete assumption of duty forms. The new school, Vubwe Secondary School [“Vubwe”], was some 100 kilometres away from Chingoma High School.

The applicants were aggrieved by both the disciplinary process and the outcome. They decided to appeal to the Labour Court. Against conviction, they would challenge the propriety of the disciplinary proceedings, which to them was a complete nullity by reason of the process having been conducted way outside the mandatory statutory period. As for the sentence, they would argue that it was draconian and that it induced a sense of shock.

Pending appeal, the applicants would simultaneously file the urgent chamber application to stop the transfers.

That, manifestly, was the intention. But it seems things did not quite go according to plan.

The urgent chamber application was only filed on 9 February 2017. As for the appeal to the Labour Court, it was not until Monday, 13 February 2017 that it was finally filed, i.e. the day before the hearing. The applicants blamed the Registrar of the Labour Court for the delay.

The delay in filing the appeal did not cause any immediate problems. However, the apparent delay in launching the urgent chamber application did.

The period between the applicants' receipt of their sentence on 30 January 2017 and the filing of the application on 9 February 2017 was not explained. Not unexpectedly, the respondents pounced on this and took the point in limine.

I reserved judgment and opted to hear the merits.

The proceedings had to be adjourned briefly. It seemed the situation on the ground had shifted somewhat. Among other things, whilst counsel for the applicants was insisting that the applicants had not yet shifted to Vubwe Secondary School, counsel for the respondents maintained that not only had they in fact shifted, but also that two other new teachers had since been drafted to replace them at Chingoma High School. So the purpose of the brief adjournment was to enable the legal practitioners, as officers of the court, to ascertain the correct position on the ground.

They did.

It transpired that the applicants had since signed the assumption of duty forms and had assumed duty at Vubwe Secondary School the day before the hearing. It was said the fourth respondent, Chingoma High School's Headmaster, had actually been pressing the applicants to remove their belongings from the school house to pave way for the new teachers.

Counsel for the applicants' strongest argument, both on paper and in oral submissions, was that the disciplinary proceedings were a complete nullity. The applicants had challenged them. Until the outcome was known, it was wrong for the respondents to purport to execute the sentence of transfer. It would be a breach of the applicants' Constitutional rights of access to the courts and to have their dispute determined fairly. If they succeeded on appeal, after they had already been transferred, any remedy would be a brutum fulmen.

Throughout the hearing, I had to implore the parties repeatedly, counsel for the applicant, in particular, to systematically address the requirements for an interlocutory interdict as they applied to this case.

For what it is worth, the requisites for an interlocutory interdict are:

1. A prima facie right, even if it be open to some doubt;

2. A well-grounded apprehension of irreparable harm if the relief is not granted;

3. That the balance of convenience favours the granting of an interim interdict;

4. That there is no other satisfactory remedy;

5. That there are reasonable prospects of success in the merits of the main case.

See Setlogelo v Setlogelo 1914 AD 221; Tribac [Pvt] Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]; Hix Networking Technologies v System Publishers [Pty] Ltd & Anor 1997 [1] SA 391 [A]; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor 1980 ZLR 378; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H].

After full argument on the merits I reserved judgment. Here now is my judgment on both the point in limine and on the merits….,.

[b] Prima facie right

This was probably a border line case. A teacher gets employed by the Public Service knowing full well that he or she may be transferred at any time. No member of the Public Service, or any other employee for that matter, may have the right to be permanently stationed at one place, unless their contracts of employment expressly said so.

Counsel for the applicants said in the case of Taylor v Minister of Higher Education & Anor 1996 [2] ZLR 772 [S] it was held that professional employees of long standing, holding senior posts, should not be transferred without account being taken of their personal situation and wishes. In casu, he pointed to the applicants' combined twenty six years of service at Chingoma High School, and to the fact that the second applicant was a Head of Department.

However, Taylor v Minister of Higher Education & Anor 1996 [2] ZLR 772 [S] is manifestly an inapposite precedent.

Therein, the court was concerned with a transfer that was being executed without observance of the audi alteram partem rule of natural justice. Members of the Public Service, like Mr Taylor had been, could be transferred even without their consent. But the Supreme Court held that “without their consent” did not mean the same as “without a hearing.”

In casu, there was a hearing. It was not just a hearing to seek the members' reaction to the intended transfer. It was a disciplinary hearing on charges of misconduct. The applicants were found guilty. The transfers were part of the sentence. However, despite all that, I am prepared to accept that the applicants had a prima facie right not to be transferred from their station of twenty six years on the basis of a disciplinary process that could turn out to have been a complete nullity. It could be a nebulous right. But the right sought to be protected by an urgent chamber application needs not be a clear one. It may be open to some doubt. I consider that the applicants' situation herein fitted the bill.

Therefore, on prima facie right, as the first requirement for an interlocutory interdict, the decision is in favour of the applicants.

[c] A well-grounded apprehension of an irreparable harm

Under this head, there ought to be a fear or an apprehension of harm that is well- grounded, judged objectively, that is to say, what a reasonable man, in Latin, a diligens paterfamilias, would consider harmful or perilous or prejudicial, and, that the fear or the apprehension must be of a peril or a harm or prejudice that will be irreversible if the court does not intervene.

Of this, the head-note on Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H], summarising the judgment of MAKARAU J, as she then was, says:

“Urgent applications are those where, if the courts fail to act, applicants may well be within their rights to suggest, dismissively, to the court, that it should not bother to act subsequently, as the position would have become irreversible to the prejudice of the applicant. The issue of urgency is not tested subjectively. It is an objective one, where the court has to be satisfied that the relief sought is such that it cannot wait without irreparably prejudicing the legal interest concerned.”

On the same point, GILLESPIE J, in General Transport & Engineering [Pvt] Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 [2] ZLR 301 [H] and Dilwin Investments [Pvt] Ltd v Jopa Enterprises Co Ltd HH116-98 said:

“A party who brings proceedings urgently gains considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

Beyond the need to protect their perceived Constitutional rights, the applicants did not explain what harm exactly they stood to suffer, and, most importantly, how any such harm could be said to be irreversible, if the transfers were not stopped. For example, apart from their lengths of service, there was not a word about what else there was at Chingoma High School that was not there at Vubwe Secondary School. The nearest counsel for the applicants said on this was that the applicants had never been to Vubwe Secondary School and that therefore they did not know what lay in store for them there! But you do not found a cause of action on something that you do not even know whether or not it exists. You cannot really say I stand to suffer an irreversible peril when you cannot even spell out what that peril is.

Other than the fine of $200=, which could be restored if successful on appeal, the applicants were not going to suffer a reduction in salaries. They were not being demoted. Admittedly, the second applicant could well lose being Head of Department. But this was a mere in-house administrative arrangement at Chingoma High School, perhaps through its Head, the fourth respondent herein. It had nothing to do with the second respondent, the actual employer.

Asked by myself what exactly those Constitutional rights were the breach of which would be irreversible were the applicants to succeed on appeal, counsel for the applicants could only vaguely refer to the right to a fair hearing and rights to administrative justice.

That was tenuous.

Except in some exceptional circumstances which do not concern this case, there is no question that a breach of a Constitutional right, or any right for that matter, is justiciable. But the applicants had been tried before a disciplinary committee. They had been unhappy with the outcome. They had appealed. The appeal was pending. They appreciated that the appeal did not suspend the judgment of the disciplinary committee. So they brought this urgent chamber application. But before they did, there was nothing stopping the respondents from executing the sentence of the disciplinary committee. And if the appellants succeeded before me, execution would be stopped. If they succeeded on appeal, after the transfers, they could always be reversed. It might be inconvenient. But it could not be said to be impossible.

So I did not see what Constitutional rights of the applicants that were being flouted and what irreversible harm they would suffer. Therefore, this point is decided in favour of the respondents. And that really should be the end of the matter. But I also consider the remaining requirements for an interdict.

[d] Balance of convenience

Not being chattels, it would be wrong for the applicants to be shunted from one school to another, and back again, as the judicial process was underway. What would be ideal would be to allow the judicial process to run its full course whilst the applicants stayed put until their fate was finally determined.

Unfortunately for the applicants, the status quo had changed materially.

Whether due to pressure or fear, by the time of the hearing they had assumed duty at the new school. Children at Vubwe Secondary School looked forward to being taught by them. The authorities there looked forward to confer responsibilities on them. Not only that, but other teachers had already replaced them and assumed duty at Chingoma High School. They had assumed responsibilities. Thus, the ground on which the application had been based had shifted appreciably.

Of course, that is not to say this court cannot order a reversal. But it would be a whole lot inconvenient for too many people, some of them unconnected to the dispute. A reversal might well spark further litigation, thereby causing more inconvenience - even to the courts. The applicants were largely to blame. That initial delay from 30 January 2017 to 9 February 2017, even though condoned, came back to haunt them.

Accordingly, this point is decided in favour of the respondents.

[e] No other satisfactory remedy

Counsel for the applicants' argument was that once the breach of the applicants' Constitutional rights was allowed to subsist for any time longer, nothing done afterwards could ever restore them back to their original position.

But, as I have demonstrated above, the alleged breach of Constitutional rights is really an illusion. All that had happened to the applicants, or would happen, could be reversed if their appeals succeed. That is a remedy. Among other things, their transfers could be reversed. The fines could be refunded. The reprimands could be expunged from their disciplinary records. Perhaps, only the days they would lose being away from Chingoma High School would not be restored. But this, to me, is not the kind of prejudice contemplated by the law. It is fanciful. It does not constitute a legal interest.

Therefore, this point is also decided in favour of the respondents.

[f] Prospects of success on appeal

In my recent judgment in Tetrad Holdings Limited v Master of the High Court & Anor HH898-15, I said…,:

“Weighing the prospects of success in any given case always poses problems. The court has to leap forward and temporarily sit in judgment over the pending review application. But that is unavoidable.”

I still hold the same view. I have to temporarily peek into the merits of the case before the Labour Court and express my view on the prospects of success. That view can only be a prima facie one. The matter might completely turn on its head after full argument. But to express a view is an avoidable duty.

In my view, the applicants' appeal in the Labour Court has bright prospects of success. Among other things, the disciplinary committee convicted on very shaky evidence. It is true that in spite of the use of criminal law terms like 'charged', 'convicted', 'guilty', 'sentence', and the like, disciplinary proceedings are civil in nature. The standard of proof required to grant or refuse relief is 'balance of probabilities' rather than 'beyond a reasonable doubt.'

However, after having gone through the two records of proceedings of the disciplinary committee that were produced by consent, I am not satisfied that the complainant's allegations were proved. Even if they were proved, I am not satisfied that they were so cogent as to found, let alone sustain, the offences with which the applicants were charged. Furthermore, it seems most probable that the disciplinary proceedings were conducted well outside the prescribed mandatory period and that, as such, they are liable to be set aside. Finally, to transfer a Head of Department and her husband, both of whom had rendered uninterrupted service for such lengths of time, over such nebulous charges, seemed manifestly unjust. In my view, unless there was more that was not borne out by the record, this was a matter crying out for nothing more than mere counselling of the parties involved.

However, these remain my cursory views of the matter. The Labour Court may not share them. But I would decide this particular point in favour of the applicants.

[g] Conclusion

This application fails largely on account of the failure by the applicants to show the harm they stood to suffer and in what way it would be irreversible, if indeed it existed. It also fails in that as a matter of fact, what they sought to prevent had already happened by the time of the hearing. In other words, the horse had already bolted. It was too late to close the stable door….,.

In the final analysis, the application is dismissed with no order as to costs.

HH162-11 : BYL MANYANGE vs OBERT MOSES MPOFU and BREZHNEV MALABA and ZIMBABWE NEWSPAPERS (1980) LIMITED
Ruled By: PATEL J

According to the Public Service Commission Circular No.11/2004…, the power to transfer an official of any rank equivalent or senior to that of the plaintiff vests in the Commission. The transfer of the plaintiff was directed by the Secretary of Mines and not by the Commission.

CC01-18 : TIMOTHY SANGO and EDWARD DUMBURA vs BOARD OF TRUSTEES OF THE ANGLICAN DIOCESE OF MANICALAND and THE CIVIL SERVICE COMMISSION and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHIDYAUSIKU CJ and MALABA DCJ and GWAUNZA JCC and GOWORA JCC and HLATSHWAYO JCC and PATEL JCC and GUVAVA JCC and MAVANGIRA AJCC and BHUNU AJCC

Lastly, the allegation that the applicants' right to freedom to choose a religion of their own was infringed because their transfers were penalties for having exercised their right to change religion is without foundation in fact and in law. The applicants were not transferred because they changed religion. No-one is compelled to be a member of a ...

HB146-16 : ADMIRE MAHACHI and NYARAI MPOFU and EMMANUEL MUGUTO and KNOWLEDGE SHAMHU vs OFFICER COMMANDING MATABELELAND SOUTH PROVINCE, N.O and COMMISSIONER GENERAL OF POLICE N.O.
Ruled By: MOYO J

In the case Guruva v Traffic Safety Council of Zimbabwe SC30-08, it was held that: “It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer's discretion, in determining which ...

In the case Guruva v Traffic Safety Council of Zimbabwe SC30-08, it was held that:

Good cause in that case was given as, inter alia, unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.

Of course, in Gurava v Traffic Safety Council of Zimbabwe SC30-08 reasons had been given for the transfer but the applicant had made representations against the transfer, nonetheless, the employer still insisted on the transfer after considering the employee's representations.

The Supreme Court, in that case, however, went on to hold that:

“Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they were genuine.”

In Guruva v Traffic Safety Council of Zimbabwe SC30-08, the Supreme Court went on to state that:

“The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services of the employer wherever such services are required unless the employment contract stipulated that he is to be employed and remain at a specific place only.”

In Guruva v Traffic Safety Council of Zimbabwe SC30-08, the court also quoted the case of Taylor v Ministry of Higher Education and Another 1996 (2) ZLR 772 (SC) where in the Appeal Court had held that in some cases an employer can still transfer an employee without giving him or her a hearing, depending on the circumstances of the case, and that it would be unworkable if every employee were to be consulted before a transfer decision is made….,.

In the case of Sekwele v Ministry of Communications and Another ZALC J HB 165/13, a judgment of the Labour Court of South Africa, wherein the applicant sought an interdict to stop a transfer pending challenges to same. The court therein held the view that no irreparable harm can be suffered in a transfer as the applicant therein could challenge it and that it could not be held that the applicant challenging a transfer in another fora can be held not to have an alternative remedy.

I hold the same view.

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

The applicants seek a declaratory order that the termination of their contracts of employment by the respondent was unlawful. Upon the granting of such a declaratory order, the applicants seek an order for their reinstatement to their posts without loss of salary and benefits. The application is resisted by the respondent who contends that the basis of the ...

The application is resisted by the respondent who contends that the basis of the order is flawed. Further, and in any event, it is argued, on behalf of the respondent, that the applicants were offered new contracts where their remuneration would be related to their performance. The applicants refused to sign these new contracts. A dispute arose, and, subsequently, the respondent terminated the applicants' contracts of employment.

The applicants argue that the purported termination is an unlawful circumvention of the Labour Act [Chapter 28:01] and its regulations relating to retrenchment.

Background

All the applicants were employed by the respondent on contracts without limit of time as defined in section 12 of the Labour Act. A dispute has arisen between the applicants and the respondent. On the 10^th and 11^th June 2015 the respondent wrote to each of the applicants indicating an intention to terminate their contracts and to replace them with new contracts. The letters, which were similarly worded, were crafted in the following terms:

“NOTICE OF TERMINATION OF CURRENT CONTRACT AND OFFER OF NEW CONTRACT

The macro-economic challenges facing the country are seriously hampering the viability of the company.

Particular reference is made to the poor performance of the company as reflected by the month on month sales figures from last year to date. The sales figures are well below operating costs. These figures show that it is impossible for the economy to maintain a fixed or invariable salary structure. It is therefore important for the company to adapt the way it does business to its operating environment to ensure that it survives. The costs of the company must be aligned and positively correlated to productivity.

Your current contract of employment was concluded when the environment was not as hostile on manufacturers as it is now. At the time that we concluded the employment contract, we agreed that the contract can be terminated on notice other than through dismissal. Because we still require your services, we now wish to terminate your contract on notice and replace it with one that provides for remuneration based on productivity. We hereby give you three months notice for the termination of your current contract of employment. At the same time, we hereby offer you a new performance contract which aligns your remuneration to your productivity. Your new contract, if accepted, shall become effective on the date that the termination of your current employment contract becomes effective. Should you want to bring forward the effective date of your new contract, you will be required to waive the notice required to terminate your current contract of employment.

During that period of notice, you shall not enter into any other employment on a full time, part time or consultancy basis.”

The applicants did not accept the offer of the new contracts, which they viewed as an attempt to retrench them without following the rules and regulations on retrenchment.

In a letter dated 23 June 2016, the applicants instructed their legal practitioners to reject the offer. The letter reads, in part, in the following terms:

“Our clients' view is that since you are terminating more than 5 employees, you are obliged to comply with the provisions of section 12C of the Labour Act (Chapter 28:01). In this regard, you cannot purport to act in terms of section 12(4) of the same Act because in your letter, giving notice of termination, you specifically advise the employees that you are terminating employment due to the unfavourable economic conditions. It is clear, therefore, that the termination is being done on an individual basis per se. With respect, the Labour Act provides, in section 12D thereof, that were an employer is facing financial challenges, the options available to them are to:

(a) Place employees on short-time work; and/or

(b) Institute a system of shifts.

It is clear, with respect, that the employer is not at liberty to simply terminate all its employees and thereafter offer to them fixed term contracts. That is not a special measure contemplated by section 12D of the Act…,.

In the result, the termination of the employees' employment contracts in the manner that you have done is manifestly unlawful and liable to be overturned by a competent tribunal. It is clear that your true intentions are to vary the employees' contracts without their consent…,.”

The letter by the applicants' legal practitioners encapsulates the legal arguments that are being put forward by the applicants in this matter.

The issues for determination by this court are essentially these:

(a) Whether or not the relief sought in paragraph 1 of the applicant's draft order is sensu stricto for a declarator.

(b) Whether or not the termination of the applicants' employment contracts was an unlawful circumvention of the provisions of the Labour Act and its regulations relating to retrenchment.

Declaratory Order

In determining whether the order sought is strictly a declarator it is necessary to have regard to the provisions of section 14 of the High Court Act (Chapter 7:06). It is provided under this section as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Johnsen v AFC 1995 (1) ZLR 65 (H) it was held as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment the court. The interest must concern an existing, future or contingent right…,.”

I am satisfied that the circumstances of this particular application would warrant the granting of a declarator in the exercise of my judicial discretion.

Whether or not the applicants' termination on notice is unlawful

It is clear that the starting point is to examine the meaning and purpose of the respondent's letter dated 10 June 2015. It is evident from the preamble to the letter that in consequence of economic factors affecting the viability of the company and poor sales, a fixed salary structure was no longer tenable. The respondent required salaries to be linked to productivity and performance.

The applicants placed reliance on the authority of Mutare Board Paper Mills (Pvt) Ltd v Kodzanai 2000 (1) ZLR 641 (S).

In this matter, the management of the appellant company decided that it had to reduce its work force. This decision was considered to be necessary as a cost-cutting measure that was essential to maintain the financial viability of the company. It decided that it would reduce the workforce by retiring all its male employees who were 55 years of age or over. The respondent, along with several other employees of the appellant, was compulsorily retired after reaching the age of 55. The rules of the pension fund provided that the normal retirement was at the age of 65, but an employee could retire early or be retired at the employer's instance. The respondent argued that what was being effected was retrenchment and the procedures applicable to retrenchment should have been followed. The court ruled that it was clear that the object of the exercise was retrenchment. This was shown by the fact that the employer suddenly, and simultaneously, required large numbers of employees of the same class by age to proceed to early retirement and the fact that the reason given for this step was the need to reduce the strength of the workforce.

It is my view that the termination of the employees' contracts of employment, and the proposed replacement with new contracts, was informed by the alleged macro-economic challenges. The fact that the company was re-organising its workforce is also evident in the notice of termination of current contracts.

The definition of retrenchment, as set out in the Labour Act, is as follows:

“Retrench, in relation to an employee, means terminate the employee's employment contract for the purpose of reducing expenditure or costs, adapting to technological change, re-organising the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

It is my view that whatever name the respondent has chosen to call the wholesale termination it is apparent that in terms of the law it was conducting an unlawful retrenchment exercise.

In the case of Mutare Board Paper Mills (Pvt) Ltd v Kodzanai 2000 (1) ZLR 641 (S) the Supreme Court held that:

“Even though an employer may have the right to resort to termination…, if the object and effect of such action is to retrench, then the applicable regulations must be complied with.”

It is not disputed that the respondent terminated or sought to terminate its employees' contracts en masse citing viability and re-organisation as its reasons. In its letter dated 14 August 2015, the respondent made it clear that the applicants' employment would end on 12 September 2015. The new contracts offered were separate contracts from the contracts sought to be terminated. This is more evident in that the “new” contracts would replace the “old” contracts. The applicants were advised that they would serve three months notice. If it was intended to be continuous employment, then the employee would not have been required to serve notice.

I am satisfied that the actions of the respondent amounted to an unlawful termination of the applicants' contract of employment….,.

Disposition

The applicants seek a declaratory order to the effect that the termination or variation of the applicants' contract is unlawful. I have already come to the conclusion that the purported variation or termination was not done in terms of the law. The applicants have established that the respondent sought to retrench each of the applicants. The conduct of the respondent amounts to an illegality. The variation of the old contract with a new “performance” based contract was designed to circumvent the retrenchment regulations.

In the result, it is ordered as follows:

1. The termination or variation of the applicants' contracts of employment by the respondent be and is hereby declared unlawful.

2. The respondent be and is hereby ordered to reinstate the applicants to their employment without loss of salary and benefits.

3. In the event that reinstatement is no longer an option, the respondent be and is hereby ordered to pay the applicants' damages to be determined by an arbitrator appointed by a Senior Labour Officer.

4. The respondent is ordered to pay the costs of suit.

View Appeal
SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

This is an appeal against the whole judgment of the Labour Court which dismissed an appeal against an arbitral award issued in the respondents' favour. The salient facts in this matter are the following. In 1995, the appellant employed the respondents as shelf packers and they rose through the ranks. At the commencement of the dispute they were employed as Section ...

This is an appeal against the whole judgment of the Labour Court which dismissed an appeal against an arbitral award issued in the respondents' favour.

The salient facts in this matter are the following.

In 1995, the appellant employed the respondents as shelf packers and they rose through the ranks. At the commencement of the dispute they were employed as Section Managers at TM Supermarket, Lobengula Street, Bulawayo under the M2 grade in terms of the appellant's grading system. Their remuneration was paid in accordance with their contracts of employment and in conformity with the relevant Collective Bargaining Agreement.

In 2009, the appellant offered increments to all its Section Managers in the fifty branches it operated nationwide based on monthly sales performance of the respective branches. In order to give effect to this, the appellant grouped the branches into four categories. The branch which recorded the highest sales would earn its managers a 20 percent bonus, the second highest 15 percent, the third 10 percent with the lowest earning 5 percent. Based on this formula, the Lobengula branch received a bonus of 15 percent during the period in question.

On 22 November 2011, the respondents addressed a letter to the appellant's Managing Director in which they alleged that they had discovered that since January 2010, some Section Managers were being paid a monthly salary that was higher than what the respondents were earning. They also stated that they had previously written to the Human Resources Officer - Southern Region and the Human Resources Manager concerning their grievance but they had not received a response.

There was no response from the Managing Director, and, in January 2012, the respondents lodged a complaint of unfair labour practice with a Labour Officer. They claimed the difference between their salaries and what the highest performers were being paid. The parties were invited to attend conciliation proceedings which failed to achieve a positive result, and, consequently, a Certificate of No Settlement was issued. Thereafter, the matter was referred to compulsory arbitration for the arbitrator to determine whether the respondents were entitled to back-pay and the quantum thereof.

Before the arbitrator, the respondents contended that in November 2011, most Section Managers under the M2 grade were earning salaries ranging from US$400= - US$450= per month whilst they were earning US$360= per month. They argued, before the arbitrator, that there was no rational basis for the distinction. They also suggested that in November 2011, following their complaint, each of their accounts was inexplicably credited with the sum of US$40=. It was also the respondents' contention that in February 2012 they were demoted to Grade 10 without consultation. In the result, the respondents claimed back pay in the sum of US$2,390= each and prayed that the appellant be ordered to stop acting unilaterally in violation of the labour laws.

Per contra, the appellant averred that initially the Section Managers were paid equitably and the decision to pay them based on branch performance was reached sometime in December 2010. The appellant also submitted that the respondents were in grade C2 in terms of the “Patterson” grading system and that, as they were managerial employees, their salaries were negotiated on an individual basis. Contrary to the respondents' contention, the appellant claimed that the US$40= deposited in the respondents' accounts were given to every employee of the appellant. It submitted that there was no back-pay due to the respondents because it was gravitating towards the normal payment system where employees are paid the same regardless of performance.

The arbitrator found that, in the circumstances in casu, the performance-based bonus constituted a contravention of the audi alteram partem principle as the respondents had not been afforded an opportunity to be heard concerning the new grading salary scales. He therefore held that the appellant was committing an unfair labour practice in terms of section 6 of the Labour Act in that the respondents were being underpaid for the period in question. In addition, he held that the appellant's conduct in this regard was criminal which rendered it liable for prosecution.

As a consequence, he ordered that each of the respondents be paid US$2,390= as back-pay. He also ordered that the appellant should normalize the compensation system for the respondents.

The appellant was aggrieved and appealed against the arbitral award to the Labour Court. In essence, the grounds of appeal were that the arbitrator erred in finding that the appellant committed an unfair labour practice by implementing a performance based incentive bonus scheme. It also argued that the arbitrator exceeded his terms of reference when he ordered it to normalise its payment scheme.

The Labour Court upheld the finding by the arbitrator that the appellant had committed an unfair labour practice by implementing a performance-based bonus scheme. On the issue relating to the arbitrator exceeding his terms of reference, the court a quo found that it was inconceivable that the appellant would raise such a ground of appeal when it was common cause that it had, subsequent to the arbitration proceedings, started a process towards normalising its remuneration system. In the result, the appeal was dismissed in its entirety.

Aggrieved by the decision, the appellant, with the leave of this Court, has appealed on the following grounds:

1. The court a quo erred in law in effectively coming to the conclusion that it was unlawful for the appellant to pay its employees performance-based salaries.

2. Having come to the conclusion that what the respondents were being paid was in accordance with their contracts of employment, the court a quo erred in law in holding as valid an award which entitled them to be paid on a salary scale that was not contractual and which related to different employees.

3. The court a quo erred in failing to make a determination on whether the arbitrator was entitled to stray from the terms of reference in the manner that he did and whether he was at large to afford relief which had not been motivated.

From the grounds of appeal, there are essentially two issues for determination and these are:

1. Whether the court a quo erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses.

2. Whether the court a quo erred by failing to make a determination on whether the arbitrator strayed from his terms of reference.

Whether the court a quo erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses

The appellant contends that the court a quo erred in holding that it was unlawful for it to implement a performance based bonus scheme because there was nothing unlawful about the measures it adopted in putting in place such a scheme as long as the emoluments which the employees are paid as a minimum comport with what is set out in the relevant Collective Bargaining Agreement. The respondents, per contra, contend that putting in place a performance-based salary system is unfair as it contravenes section 5(d) of the Labour Act [Chapter 28:01] (the “Act”) which prohibits discrimination on matters relating to employment, wages and benefits.

A bonus is what can generally be termed a benefit. The implication that can be drawn is that the grant of a bonus, per se, is not illegal and an employer cannot generally be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has the right to a performance based incentive and if they work well, they will be paid well without any reference being made to their class, race, tribe or any other factor on the basis upon which discrimination can competently be committed. Thus, the grant of a performance-based bonus is therefore not proscribed by law.

It is only where the awarding of the bonus constitutes an unfair labour practice that would render the bonus illegal.

It should be noted, however, that a court will interfere with a decision which involves the exercise of discretion in very limited circumstances. These were set out by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)..., where the Court said:

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first, one which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds. See Farmers' Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

It is trite that the grant of a benefit is at the discretion of the employer and cannot be interfered with unless the employer has, in granting the benefit, exercised his discretion capriciously or on a wrong principle. This position was buttressed in First Mutual Life Ltd v Muzivi SC09-07 where CHEDA JA stated:

“Payment of an annual bonus is generally discretionary on the part of the employer. It could not be said that the employee would have been awarded a bonus under all circumstances. A bonus would have depended on a clear record of performance. Having been suspended, it could not be said that the employee performed so well that he would have been entitled to a bonus.”

The above dictum amplifies the principle that the decision to grant or award a bonus to its employee is entirely within the employer's discretion and is dependent on the employee's performance.

What can be gleaned from the above is that the arbitrator, as well as the court a quo, could only interfere with the appellant's decision to implement a performance-based bonus scheme if it was found that an error had been made or if the employer, in implementing the scheme, had acted on the wrong principle or if the employer allowed extraneous or irrelevant factors to guide or affect it or if it did not take into account some relevant consideration.

Regarding the performance based bonus system, the Labour Court held as follows;

“I agree with the arbitrator that failure to appraise employees of putting such a system in place and go on and base the salaries on the system is unfair and unjust and not in keeping with the Labour Act. Section 5 of the Labour Act prohibits discrimination on any other matter related to employment and in any matter relating to wages and benefits. The employer has an obligation to advise the employee, in writing, of the remuneration and how it shall be arrived at.”

It is evident from the remarks above that the court a quo upheld the arbitrator's decision that declared the bonus illegal on the premise that the respondents were not informed about the scheme prior to it being implemented.

It is my view that the finding by the court a quo cannot be assailed because employees have a right to be informed about decisions pertaining to their employment conditions of service - even if the decisions are made in the exercise of an employer's discretion. The appellant, as the employer, had a duty to notify all employees about its decision to start a performance-based bonus scheme before implementing it.

However, that said, the court a quo erred in upholding the order awarding the respondents back-pay. As correctly argued by the appellant, once the court a quo found that the performance based bonus scheme was illegal, it should not have upheld an order awarding back pay based on an illegal scheme. A finding that an arrangement is turpious is incompatible with an order enforcing the same as was done in casu by requiring that the employees be paid in terms of an allegedly unlawful arrangement. This is what is referred to as the ex turpi causa principle. The order of the arbitrator and that of the court a quo upholding the former, contravenes this principle, and, as a consequence, the principle is offended by an order enforcing what has been held to be illegal. In addition, a court cannot lend itself to an illegality. See Dube v Khumalo 1986 (2) ZLR 103; Foroma v Min of Public Construction & Anor 1997 (1) ZLR 447 (H).

The court a quo failed to appreciate the point that an arbitral award cannot be founded on an illegality. An illegal act is void and cannot be enforced. As LORD DENNING stated in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC)…,.:

“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The above dictum is apposite.

In casu, once the Labour Court found that the performance based scheme was illegal, which bonus scheme the arbitrator had declared illegal, it was incumbent upon it, as an Appeal Court, to set aside the arbitral award upon which the back-pay was awarded. The court, however, notwithstanding its finding of illegality, went ahead to uphold the award. In this respect, the court a quo erred.

In an appeal, this Court will not simply deal with the direct dictates of an order but also its effects. In Williams & Anor v Msipa N.O. & Ors SC22-10, the court said:

“The court must be able to intervene not only against the direct dictates of the judgment of the lower court but also against its effects. See Macdonald v Canada (AG) (1994) I SCR 311 @ 329.”

The effects of the judgment of the court a quo is to sanction an illegality. The judgment does not serve the law. Rather, it enforces what it has itself found to be void. There is a patent contradiction. Accordingly, its decision should be set aside on that basis….,.

It follows that the judgment of the court should be set aside in its entirety.

In the result, the following order will issue:

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and in its place is substituted:

“(i) The appeal be and is hereby allowed with costs.

(ii) The arbitral award by the learned arbitrator, I Bonda, dated 23 October 2012, be and is hereby set aside.”

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

“This matter demonstrates the challenges which emerge from parties pursuing the same issue before different judges who may each be seized with different aspects of their appeals. The result is divergent judgments from the same court. Whereas CHIVIZHE J made a finding that bonus is payable at the discretion of the employee and is not an entitlement, ...

HMA30-18 : CHIDO MUROMBEDZI vs SMM HOLDINGS [PVT] LTD
Ruled By: MAWADZE J and MAFUSIRE J

It is true an employee who is on secondment to another branch of the employer or enterprise is transferred on a temporary basis. He remains employed by the seconding office or employer: see Shumba v Commercial Bank of Zimbabwe HH100-06 and Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S]. In Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S], Dairibord, the ...

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society. The truth of the matter is that these currencies had ...

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full....,.

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”...,.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order: “1. The Respondent's objections in limine are dismissed. 2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted. 3. It is hereby declared that the Applicant is ...

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?

I had no hesitation in dismissing the respondent's document. In my view, it was a clumsy counterfeit.

Both documents were fairly extensive and comprehensive. One remarkable thing about them was that the print, the font, the graphics, the design, the layout and virtually everything else, was identical. Even the wording was identical, except only in the one clause germane to the dispute. That was clause 11.0. In my view, that was where the respondent got caught out.

I shall demonstrate this.

The heading on the applicant's document, in upper case, was “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this document had been amended or replaced in May 2011. Incidentally, the applicant had resigned from employment in June 2011. If the applicant's document had been amended or replaced in May 2011, one would reasonably expect the amending or replacement document to reflect the date of its own inception or, at least, to say something different somewhere. But except for clause 11.0, it did not.

The respondent's document was also headed, in identical font and case, “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the heading of the applicant's document read “AMENDMENT NO.1 OF JANUARY 2011”. The respondent's document was also headed “AMENDMENT NO.1 OF JANUARY 2011”.

How could both documents purport to be the same amending document and purport to be amending the same old policy?

But, that was not all.

On the applicant's document, after the headings, there followed some twelve main clauses, some with sub-clauses. These were spread over some nine pages, starting with clause 1.0 up to clause 12.0. The contentious clause, 11.0, headed “DISPOSAL”, was towards the bottom of page nine on the applicant's document. It was exactly the same on the respondent's document; the only difference being that in the case of the respondent's document, clause 11.0 occupied a slightly larger space, and, consequently, left not enough room for the next clause, namely, cause 12.0. Both documents indicated that they went up to page ten. However, page ten of the applicant's document was not attached. But this was immaterial. It was not even an issue. The dispute centred on clause 11.0.

I shall come to it in a moment. For now, I continue with my analysis of the other areas so as to place clause 11.0 in context.

Clause 1.1 on the applicant's document said; “This amended policy shall be effective from 1^st May of 2011 and its implementation will not be in retrospect.”

The corresponding clause on the respondent's document said exactly the same thing. On the foot of every page on the applicant's document were boxes with names and signatures of two of the respondent's officials who had prepared and approved the policy. In the boxes, apart from the names and the signatures, were three inscriptions stating that it was Motor Vehicle Policy No.1 of 2011, which was effective from 1 May 2011 and was replacing Policy No.1 of 2008. It was exactly the same thing on the respondent's document.

The respondent continued to argue that its document replaced the applicant's document in May 2011 but gave no exact date when this had been. I rejected that contention. It was manifestly untruthful. How could the respondent's document be effective from the same date as that of the applicant's?

The respondent accepted the applicant's document as genuine.

So, if the applicant's document had been first in time, as the respondent acknowledged, how then could its own document apply retrospectively given that clause 1.1 in both documents was against retrospective application?

The applicant maintained that the respondent's document was a fabrication. She said if at all it had been brought in at some stage, then it could only have been after her departure as nobody had brought it to her attention during her tenure.

That sounded plausible enough to me.

The next clause after clause 11.0 on the applicant's document was an incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause [i.] was accommodated on the bottom of page nine. The whole of clause 12.0 on the respondent's document was on page ten. None of its sub-clauses could be accommodated on page nine. That was because on the respondent's document clause 11.0, the bone of contention, had some words altered, some added in, and a whole new sub-clause inserted. On the applicant's document clause 11.0 read as follows:

“11.0 DISPOSAL

(i) On the attainment of 120,000km mileage, comprised of monthly allowable business and private mileage or upon attaining of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may be offered to the employee for purchase.

(ii) An employee whose vehicle is being replaced will have the right of first refusal offer to purchase the vehicle at 10% of open market value or at book value, whichever is the lesser.”

On the other hand, clause 11.0 on the respondent's document read like this:

“11.0 DISPOSAL

(i) Upon the attainment of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may [author's emphasis] offered to the employee for purchase.

(ii.) The vehicle may be purchased at market value less 10% or depreciated net book value, whichever is the lesser.

(iii) The Group Chief Executive Office will approve the disposal of all company cars.”

It was not difficult to see that the new clause 11.0 in the respondent's document had far reaching changes which constituted a serious diminution of rights and benefits accorded to employees under the old policy. Demonstrably, those changes were meant to ward off the applicant's claim.

For example, and to begin with, the applicant's clause 11.0 only had two sub clauses. The respondent's had three. Next, the reference to a mileage of 120,000 kilometres in the applicant's document was completely scrapped off in the respondent's. It was common cause that the applicant's vehicle had clocked over 165,500 kilometres on the dash board. Furthermore, by highlighting, in the respondent's document, the word “may” in the obligation to offer the vehicle for sale, it was obviously meant to emphasize the discretion of the employer in that regard - that was the bulwark of the respondent's argument at the hearing.

However, and more importantly, the price at which the vehicle could be sold was increased phenomenally from 10% of the open market value to a market value less 10%. The whopping difference was dramatized by the figures that were disclosed in the papers. After some three valuations the vehicle's open market value had been agreed at $3,500. The applicant had tendered $315, being the 10% of the market value less another 10%. The respondent rejected that and demanded a purchase price of $3,150 which was the market value less the 10%. Finally, in the new document, the respondent's highest office would now have to be involved in the disposal of such vehicles, something that was not there in the applicant's document.

There was nothing to suggest that clause 11.0 in the respondent's document was a genuine amendment. Even if it was, there was nothing to show that it had been effected during the applicant's tenure of employment, or that it had been brought to her attention and that she had consented to it. What I found probable was that clause 11.0 in the respondent's document had been inserted after the fact. Therefore, that document was not the actual motor policy vehicle that was in place during the applicant's tenure of employment. It was partly for that reason that I found for the applicant.

But, there were other reasons.

As pointed out before, the respondent's argument was further developed to say that it had the sole discretion to sell or not to sell company vehicles to incumbent users and that it was not obliged, in terms of the motor policy, to sell to the applicant.

Predictably, the spotlight was on the word “may” to stress the discretion reposed in the respondent in that regard.

The respondent's argument was also developed to say that even if I found that it had agreed to sell to the applicant, the sale was not perfecta, allegedly because what the respondent had offered is not what the applicant had accepted. It was put this way in the respondent's heads of argument:

“6.2 Further, for a contract to be formed it is necessary that the offeree must, in agreeing, accept the exact terms offered by the offeror. Where the offeree makes a counter-offer or signifies a qualified acceptance of the offer, the offer is taken to have been refused and no contract is formed – see Orion Investments (Private) Limited v Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).

6.3 The Applicant was made an offer to purchase the vehicle, the Applicant accepted an offer that was not made to her, and, as such, no contract came into existence.”

The fallacy in the respondents' two arguments above is exposed by the detail. It was abundantly clear from the motor vehicle policy that, among other things, the possession of a company vehicle for both business and private use for certain grades was an integral employment benefit. It was said company vehicles were provided for those grades as part of a competitive, market-related package to cater for the employees' specific operational needs so as to capture best and modern reward practices. Clause 3.1 was more succinct:

“3.1 There are two reasons why the Company issues motor vehicles to employees. The first is due to seniority of the employee, such as a manager, in order that he or she can undertake the work necessary at the level at which that person is employed and also as part of the remuneration package of that individual. These will be issued with Company cars.”

I am not suggesting for a moment that the right of an employee to a company vehicle entails the right to buy it. But, in this case, it was against the philosophy of the respondent on company vehicles, as set out above, that I had to consider clause 11.0. It was the clause that provided for the sale of company vehicles to incumbent holders. That philosophy was further elucidated in clause 4.3 as follows:

“4.3 A 'company car' is one allocated to an individual in recognition of one's managerial status. It is a benefit accruing to an individual as part of his or her conditions of service. The employee is entitled to use it for both company and personal business, subject to the provisions of this policy.”…,.

Thus, in a nutshell, and in my own words, at the respondent's company, company vehicles were a reward or benefit for certain senior grades. They were an integral part of the conditions of service.

The applicant had been employed by the respondent as Group Audit Manager. It was common cause that her grade entitled her to a company car. It was also common cause that for her grade, and, in particular, in terms of clause 11.0, she was entitled to expect the respondent to sell her the vehicle after it had clocked a mileage of 120,000 kilometres, or had reached the age of five years if it had been in use for not less than three years. The applicant was also entitled to expect that when the respondent offered her to purchase the vehicle the purchase price would be 10% of the market value.

In my view, such expectation could not be taken away unilaterally by the respondent. To take it away, as the respondent had purported to do with its document, would amount to an unlawful diminution of the applicant's conditions of service: see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731; Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H); Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S); Taylor v Minister of Education & Anor 1996 (2) ZLR 772 (S); Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H); and Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S).

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is a court application filed in terms of Rule 449 of the High Court Rules, 1971 in which the applicant seeks an order rescinding the order granted by this court on 27 November 2019. In terms of the Supreme Court Rules, 2018 the High Court Rules apply whenever there ...

THE BACKGROUND TO THE APPLICATION

The applicant was employed by the respondent at its Bulawayo depot in the capacity of a Laboratory Technician Quality Control Analyst, Grade 3. In July 2015, the respondent introduced an incentive scheme in terms of which employees were to be paid a monetary incentive half yearly. The scheme was non-contractual and was introduced by the respondent to improve the morale of employees at the workplace and to motivate the employees during the performance of their duties. The incentive was payable at the discretion of the respondent's Internal Remuneration Committee and was to be tabled before the Managers' Works Council for its input before it could be operationalised.

One of the conditions of the incentive scheme was that it was not payable to an employee who would have been convicted of misconduct during the period covered by the scheme.

The scheme was to be paid half-yearly for the period January to June, and, thereafter, from July to December. The company under-performed during the period July–December 2015, and, consequently, no incentive was paid for that period. The company however did a lot better in the period January–June 2016 and some employees were paid the incentive bonus. The applicant was however not paid, the reason being that during that period he had been found guilty of misconduct and given a written warning.

The applicant raised a grievance in terms of the company's Code of Conduct, querying the decision not to pay him the incentive bonus. The grievance went through the three stages provided for in the employment Code and eventually came up before the Managing Executive–Stock Feeds, who was the last hearing officer. He found that the matter was pending on the Works Council agenda, and that, until the Council resolved the matter, the policy was to remain operational. In the result, the Managing Executive decided that the grievance was to await the determination of the Works Council and that Human Resources was to look into the cases of bonuses that had been paid in error.

Unhappy with the decision of the Managing Executive – Stock Feeds, the applicant appealed to the Labour Court on two grounds;

(i) First, that the respondent had erred in considering his past disciplinary record in justifying its decision not to pay him the incentive bonus.

(ii) Second, that the respondent had, in any event, erroneously relied on an invalid scheme which was yet to be debated at the level of the Works Council.

The Labour Court found that the applicant had been convicted of misconduct and given a written warning which was valid for three months. This had happened in January 2016. The court found that for the period January–June 2016, during which the incentive bonus was payable, the applicant had an existing misconduct case and that he was therefore ineligible to get the incentive bonus in terms of the conditions of the scheme. The court also found that the incentive scheme was not an entitlement and that it was non-contractual. It therefore found that, as a court, it could not, in these circumstances, impose an obligation on the employer to pay the incentive bonus in all cases as that would be tantamount to re-writing the contract of employment for the parties. The court further found that there was a contradiction in that, whilst the applicant was seeking an order for the payment of the incentive bonus to himself, he was, at the same time, impugning its validity. The court was therefore not persuaded by the argument that the scheme was invalid. Consequently, the court dismissed the appeal with costs on the ordinary scale.

APPEAL TO THIS COURT IN CASE SC599/18

Dissatisfied with the ruling of the Labour Court, the applicant, as appellant, appealed to this Court seeking an order setting aside the judgment of the Labour Court and substituting the same with an order that the appeal succeeds and that the respondent pays him the incentive bonus. His grounds of appeal were formulated as follows:

“1. The judge a quo erred and grossly misdirected herself when upholding disqualification of payment of an incentive bonus on the basis of disciplinary record whose evidence was not explained or presented in court.

2. The court a quo erred on a point of law when upholding an illegal contract.

3. The court a quo grossly erred when it ruled that the court could not intervene in an agreement between the parties whereas the agreement is not dictated by good law or by fairness or good faith thereby giving reasons that are bad at law constituting failure to hear and determine according to law.

4. The judge a quo erred and grossly misdirected herself when she allowed disciplinary issues to overarch remuneration.

5. The learned judge erred and grossly misdirected herself by not ruling on Negotiating Framework document, a decision that ignores other issues that bring it for resolution is unreasonable and does not achieve finality.”

The appeal was opposed by the respondent who submitted that the payment of the incentive bonus was regulated by the Staff Incentive Scheme and not the respondent's Code of Conduct. The applicant could not, therefore, seek to enforce an incentive bonus that was not part of his employment contract and which was payable at the discretion of the employer. The incentive bonus was not remuneration due to the applicant as a right but was a discretionary payment to those employees who were not disqualified by the set terms and conditions of the scheme. The respondent accordingly prayed for the dismissal of the appeal together with costs on the higher scale, arguing that the appeal was an abuse of court process.

At the hearing of the earlier matter before this court, on 20 November 2019, the applicant appeared in person whilst the respondent was represented by a legal practitioner. After hearing submissions from both parties, the court had made the following order:

“It is ordered, by consent, that:

The appeal is dismissed with costs.”

I pause here to note that the order was by consent of the parties. Consequently, there are no reasons for the order made by this Court on the day in question.

THE PRESENT APPLICATION

The present application is for the rescission of the above order. The application states that it has been filed in terms of Rule 449(1)(b) of the High Court Rules, 1971. In his draft order, the applicant is seeking the following order:-

“Pending the finalisation of negotiations purposed on ratification of FY16 Staff Incentive Scheme following which either party may approach the court to rule on the contract of employment.”

It is his further submission that the order by this court did not spell out the fate of the incentive scheme following the dismissal of the appeal. He further poses the question whether “negotiations are now in futility and the incentive scheme is binding to the extent that any subsequent impeachment of the incentive scheme is res judicata.” He further submits that the above order will interfere with the negotiations that are to be negotiated by a task force set up by the Works Council for purposes of negotiating the incentive scheme.

The respondent opposes the application and the relief sought. It has submitted as follows:

“The application is incompetent and is an attempt to have this court review its previous decision. Further, there is nothing vague or ambiguous in the order that this Court made in November 2019. The respondent therefore prays for the dismissal of the application with costs on the higher scale for the reason that the application has not been instituted with a genuine desire to seek justice, but, rather, to harass the respondent.”

In his answering affidavit, the applicant points out that he has approached the court to rescind its order because it is vague and ambiguous. It is “vague on the applicability of the incentive scheme and legality of the contract of employment.” He further avers that the order is vague “as to the future rights of the parties and their privies with respect to clauses of the incentive scheme” and that the order “omits to express a position on the binding nature of incentive scheme leaving parties to guess. That vagueness is surely a compelling reason for rescission.” He has further submitted that “the order is unspecific” and “creates vagueness and ambiguity and is sound ground for rescission.”

PURPOSE OF RULE 449 OF THE HIGH COURT RULES

In general, once a court pronounces its decision it becomes functus officio, and cannot tinker with its decision except to correct typographical or other obvious mistakes. The High Court Rules, however, allow the court or a judge, under Rule 449(1)(b), whether mero motu or on application of any party affected, to correct, rescind or vary any judgment or order in which there is an ambiguity or patent error or omission – but, only to the extent of such ambiguity.

The purpose of Rule 449 is to enable the court to revisit its orders and judgments, to correct or set aside its orders and judgments where, to allow such orders to stand on the basis that the court is functus officio, would result in an injustice that may destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot otherwise be corrected in any other way. The Rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment. It is designed to correct errors made by the court itself and is not a vehicle through which new issues and new parties are brought before the court - Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…,.

An ambiguous judgment would be one that is unclear and capable of more than one interpretation. This can happen because of the language used by the court. In such a case, relief can be granted where, because of the language, the ambiguity has the effect of obscuring the true intention of the court or judge. On the other hand, a patent error or omission is one which is clearly obvious to anyone reading the judgment or order. Examples include clerical errors on figures, dates, or spellings - Masamba v JSC and Another HH283-17.

WHETHER THERE WAS AN AMBIGUITY OR PATENT ERROR OR OMISSION IN THE ORDER OF THIS COURT DATED 20 NOVEMBER 2019

In its decision of 20 November 2019, this Court was asked to determine the appeal noted against the decision of the Labour Court that had, in turn, dismissed the appeal noted by the applicant. That decision, by the Labour Court, had dealt with the applicant's complaint that he had been improperly excluded from benefiting from the incentive scheme and that the scheme was, in any event, unlawful. The Labour Court had found that the decision to exclude the applicant was not improper. The Labour Court was not persuaded that the scheme was invalid and noted that the two reliefs sought by the applicant in the appeal were contradictory.

The appeal from the Labour Court to this Court raised three basic issues;

(i) First, that the Labour Court had misdirected itself in upholding the decision to disqualify the applicant from getting the incentive bonus.

(ii) Second, that the court erred in upholding an illegal contract.

(iii) Third, that the court erred in not ruling on the negotiating framework document.

These were the issues that fell for determination before this Court when it sat on 20 November 2019.

When this Court dismissed the appeal, on 20 November 2019, the findings and order previously made by the Labour Court remained extant. In other words, the findings that the incentive scheme was not unlawful and that the applicant was not eligible to be paid the incentive bonus in terms of the incentive scheme's terms and conditions remained extant.

After carefully considering the present application, I am in no doubt that the applicant has not shown any ambiguity or patent error or omission in the order made by this Court, with his consent, on 20 November 2019. The order is very clear and allows of no ambiguity. There is no patent error or omission in that order. The order is clear that it is dismissing the appeal filed against the judgment of the Labour Court.

The present application has not been filed in order to correct an ambiguity or a patent error or omission. To the contrary, it seeks to re-argue the issue of the incentive scheme (which was one of the issues that fell for determination before this Court on 20 November 2019) and also to introduce new issues. The draft order to the application seeks an order that:

“The whole order of court under SCB599/19, dated 27 November 2019, be and is hereby rescinded till notification of finalization of Works Council negotiations or ratification of FY16 Staff Incentive Scheme. Consequent to those negotiations the court will convene to rule on the contract of agreement.”…,.

The draft order therefore evinces an intention to have the order set aside, not because it is ambiguous or contains a patent error or omission, but because the applicant considers it necessary that it be rescinded until the negotiations before the Works Council are finalised after which this Court can then sit again and rule on the legality of the scheme.

It is apparent from the submissions made by the applicant, and from the draft order, that he believes that the order of this Court, of 20 November 2019, has short-circuited negotiations that are pending before the Works Council.

In paragraph 5 of his founding affidavit, the applicant states:-

“…, the final order usurps the statutory rights of the parties in the negotiations and interferes with the decision making process of the Works Council. It is for this reason that the final order must be rescinded to give effect to the statutory rights of the Works Council following which the final order may take effect.”

In paragraph 15 of his founding affidavit he states that:-

“…, the final order interferes with negotiations. The order may even trammel the outcome of the negotiations. The earlier final order is therefore not in the interests of justice.”

In paragraph 18 of the same founding affidavit, he says that the order:-

“…, gives effect to a unilateral draft document with no signatures and the document contains patent error in duties (as observed by the justice) with clauses yet to be negotiated at later dates while other clauses are expressly illegal.”

I agree with the respondent's submission that the gravamen of the complaint by the applicant is that he is unhappy with the order of this Court, made in November 2019, and that the intention is to change the complexion of that order.

There can be no doubt that, in these circumstances, the applicant has not demonstrated that there is any ambiguity or patent error or omission in the order made by this Court on 20 November 2019. What the applicant is seeking, therefore, is an order setting aside the previous order of this Court and substituting in its place an order that any decision of this Court should await the conclusion of the negotiations taking place before the Works Council.

Clearly, Rule 449(1)(b) was not intended to cater for the above situation.

The issues now raised should more properly have been raised in the appeal that was heard by this Court on 20 November 2019. Indeed, the allegation that the incentive scheme was unlawful was made in the grounds of appeal, but, as already noted, the appeal was, by consent, dismissed, thereby bringing to an end the argument that there was something wrong with the scheme.

COSTS

Whilst this Court accepts that, as a self actor, the applicant is entitled to his day in court in appropriate circumstances, it is clear in this case that the applicant could not have held the genuine belief that he could properly use Rule 449 in order to have the previous order of this Court set aside. He had consented to the dismissal of the appeal with costs. That order cannot, in any way, be said to be ambiguous nor can it be said that it contains a patent error or omission.

I am satisfied, on the papers before me, that the application was intended to achieve a result not contemplated by Rule 449 of the High Court Rules.

In the circumstances, whilst the courts are generally reluctant to mulct self-actors by ordering them to pay costs, and, in particular, costs on the higher scale, it seems to me that in a case, such as the present, where the self actor, as applicant, abuses the Rules of this Court in order to achieve his own purposes, an order that the self-actor pays costs on the higher scale is warranted.

DISPOSITION

The applicant has not demonstrated any ambiguity or patent error or omission in the order made by this Court on 20 November 2019. It is apparent from the papers that the purpose of the application was not so much to seek a correction or rescission of the order, but, rather, to have the order, granted by consent, set aside for the totally different purpose of having negotiations at the Works Council concluded on the incentive scheme. The application therefore is without merit and must fail.

It is accordingly ordered as follows:

“The application is dismissed with costs on the scale of legal practitioner and client.”

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court handed down on 1 June 2018 dismissing, with costs, an appeal made by the appellant against an arbitral award made by an arbitrator on 18 July 2017.FACTUAL BACKGROUNDThe appellant is a holding company with subsidiaries which include Ballantyne ...

FACTUAL BACKGROUND

The appellant is a holding company with subsidiaries which include Ballantyne Butchery (Private) Limited t/a Dan Meats and Triple C (Private) Limited. From August 2007, it employed the respondent as the Finance Manager of Ballantyne Butchery (Private) Limited t/a Dan Meats.

About January 2009, the appellant re-assigned the respondent to another subsidiary, Colcom Trading (Private) Limited, as Finance Manager, on the same employment conditions. He was again moved to Colcom Services (Private) Limited on the same conditions in 2011.

The fortunes of the appellant took a down turn about March 2013. As a result, a restructuring exercise was undertaken the effect of which was to include the respondent in a list of those who were to be retrenched from employment. Thereafter, the parties haggled for some time about the terms of retrenchment. During the course of that exercise, an opening occurred when the Finance Manager of Triple C (Private) Limited, another subsidiary of the appellant, immediately resigned leaving the post vacant.

The appellant seized the opportunity, and, by letter dated 11 March 2013, it offered the post to the respondent. As the position was the same grade as that held by the respondent, the transfer to Triple C (Private) Limited was said to be a lateral one. The offer letter written to the respondent made it clear that the appellant would gladly “clarify any clause in the contract” which the respondent felt needed clarification.

The employment letter containing the terms and conditions of employment was attached and a request was made for the respondent to signify his acceptance by signing an acceptance slip at the end of the letter. The respondent had misgivings about the terms contained in the letter and endorsed his reservations of what he termed “varied terms and conditions” in long hand at the bottom of each page of the appointment letter. Notwithstanding his reservations, the respondent signed the “acceptance of new contract” slip on 23 May 2013. He however indicated that he would continue reporting at his old station “under protest.”

The respondent was advised to report for duty at Triple C (Private) Limited on 27 March 2013.

He did not do so insisting on remaining at his former station from where he had been transferred. In fact, he lodged a complaint of an unfair labour practice with a Labour Officer. By letter dated 27 May 2013, the group Human Capital Director of the appellant put the respondent on terms to report for duty at his new employment station. The letter reads in relevant part:

“RE: YOUR FAILURE TO REPORT FOR DUTY AT TRIPLE C

It has come to our notice that you have not reported for duty at Triple C as per the letter of transfer which you signed for in acknowledgment of receipt on 23rd May 2013 and indicated therein that you were to report for duty as required of you but under 'protest.'

Your 'protest' arises from what you term 'variation of terms and conditions' of your employment.

While we were in the process of attending to the 'issues' you raised as alleged variations of terms and conditions of employment, we note, with regret, that you have already lodged a claim of unfair labour practices with the office of a Labour Officer on the same issues. In the circumstances, our due consideration of your 'concerns' has been rendered irrelevant by you.

However, in the meantime, please note that we expect you to report at Triple C and exercise your duties as Finance Manager than to sit idle in your office as you are doing. Should you fail to do so by 0800 hours on 29th May 2013, your conduct will be a repudiation of your employment to which we will accept your wishes and pay you your terminal benefits.

Please therefore be guided accordingly.

Kind regards
Z.Matsika
Group Human Capital Director.”

The respondent again defied the order to report for duty at Triple C (Private) Limited. The appellant then served the respondent with a notice of termination of the employment contract on 30 May 2013. He was advised that his terminal benefits, together with three months' notice pay, would be processed and paid into his Bank account.

The respondent was unhappy with that turn of events. He had already reported a case of unfair labour practice by the appellant alleging material variation of his contract, repudiation of the employment contract, and non-payment of benefits and arrears. In due course, the Labour Officer issued a Certificate of No Settlement. Resultantly, the dispute was referred to arbitration.

The arbitrator found in favour of the respondent. In the arbitral award, issued on 18 July 2017, the arbitrator found that the appellant was the respondent's employer.

He found that the employment contract had been unlawfully terminated and that there had been a unilateral variation of its terms. Reinstatement, or damages in lieu of it were ordered in the event that reinstatement was no longer possible. The arbitrator also ordered the appellant to pay damages for contractual breaches in the sum of US$29,686=39 for profit share and reimbursement of US$1,200 in school fees.

The appellant was aggrieved and took to the Labour Court on appeal.

The appellant contended that the respondent's failure to report for duty, as directed, amounted to a repudiation of the contract of employment and that there was no unilateral variation of the contract on its part.

It was the court a quo's finding that the appellant unlawfully terminated the employment contract which it had unilaterally varied. The fact that no disciplinary hearing was conducted violated the respondent's right to be heard. The appeal was dismissed.

It is against that judgment of the court a quo that this appeal was lodged.

GROUNDS OF APPEAL

The appellant raised the following grounds of appeal;

1. The court a quo (erred) in not finding that the respondent had sued the wrong party as his employer, and, accordingly, that the arbitrator had, in not finding that Triple C (Private) Limited was the respondent's employer, committed an error in law.

2. The court a quo erred in coming to the conclusion that there had been an unlawful variation of the terms of the respondent's contract of employment and so erred in not considering the circumstances under which he had been transferred and also the fact that an employment relationship cannot remain static.

3. The court a quo erred in not coming to the conclusion that the respondent had, by not reporting for duty after his transfer, repudiated his employment and that the acceptance of such repudiation by the employer did not constitute unfair dismissal.

4. A fortiori the court a quo erred in coming to the conclusion that the appellant ought to have brought disciplinary proceedings against the respondent.

At the commencement of the hearing of the appeal, counsel for the appellant abandoned the first ground of appeal. He indicated that he would motivate the appeal on the basis of the remaining three grounds. Accordingly, the first ground is struck out and will not be related to in this judgment.

ISSUE FOR DETERMINATION

While there are still three grounds of appeal, they all dovetail to only one issue for determination in this appeal. It is whether or not the respondent's contract of employment was lawfully terminated.

SUBMISSIONS ON APPEAL

Counsel for the appellant submitted that the respondent's employment was lawfully terminated on notice after he refused to assume duty at Triple C (Private) Limited. He submitted that there is a distinction between a dismissal from employment which follows disciplinary proceedings and a termination of employment on notice. Both, the court a quo and the arbitrator, so the argument goes, fell into grave error in making a finding that the appellant was required to institute disciplinary proceedings against the respondent before terminating his employment.

It was further argued, on behalf of the appellant, that the offer to employ the respondent at Triple C (Private) Limited came in the context of retrenchment proceedings which were ongoing at the time.

Indeed, according to the minutes of a meeting held by the parties on 25 March 2013 to negotiate a retrenchment package, it is the respondent himself who made a proposal “to be given right of first refusal of new jobs if they arise.” The respondent had made the request because, according to him, “there (were) no jobs out there.” When the Finance Manager of Triple C (Private) Limited resigned, an opportunity presented itself to avoid retrenching the respondent by offering him the job as requested.

According to the appellant, the respondent accepted the offer of the job, albeit under protest. His concerns were still being looked into but he was expected to report for duty. He refused to do so preferring to remain idle. Counsel for the appellant submitted that the stance taken by the respondent left the appellant in a quandary because it had nowhere else to deploy him. It was the intransigence of the respondent, in continuing to report at his former station where there was no work to be performed, which invited the termination of his contract of employment on notice. Counsel for the appellant maintained that the appellant was entitled, at law, to terminate the employment on notice. He placed reliance on a number of authorities to make that submission.

Counsel for the respondent took the view that there are two issues that are dispositive of the appeal;

(a) The first one is whether or not the appellant unilaterally varied the employment contract.

In that regard he made reference to the letter of transfer dated 21 May 2013 which made it clear that the transfer was a lateral one. This meant that the respondent would continue to enjoy the same benefits he enjoyed prior to being transferred.

The view taken by the respondent is that the appellant tinkered with the conditions of his employment thereby repudiating it.

(b) The second one is whether the subsequent termination was lawful.

In that regard, the court a quo correctly found that the employment contract was unlawfully or unfairly terminated. In fact, the court a quo was of the view that a disciplinary hearing should have been conducted in terms of the appellant's Code of Conduct. In arriving at that position the court a quo relied on section 12B(1) of the Labour Act [Chapter 28:01] which provides that an employee is unfairly dismissed if the employer fails to show that he, she, or it dismissed the employee in terms of an employment Code.

ANALYSIS

It is common cause that no disciplinary proceedings were instituted against the respondent and that he was not charged with any act of misconduct for which he could be dismissed from employment. It is also common cause that when the parties reached a deadlock about the respondent assuming duty at a new base, to which he had been transferred, the appellant served him with a notice of termination of employment.

The issue for determination is the lawfulness of that course of action.

In considering the lawfulness of the appellant's actions, it is important to start from the standpoint that upon the respondent being transferred to Triple C (Private) Limited, he signed the letter of appointment on the space provided for “acceptance of new contract.” He then registered his concerns with the appellant as he was entitled to do. The respondent also went on to report a dispute to a Labour Officer. This was also proper and the dispute would have been dealt with according to the law.

His biggest undoing was the dogged refusal to report for duty assigned to him. It meant that the parties could not contractually move forward together.

The appellant did not opt to charge the respondent with misconduct and certainly did not dismiss him for misconduct.

I agree with counsel for the appellant that termination of employment does not amount to dismissal all the time and that while dismissal results in termination of employment there may be termination without dismissal.

Dismissal ordinarily arises from disciplinary proceedings while termination may be done on notice.

Indeed, section 12 of the Labour Act [Chapter 28:01] deals with “Duration, particulars and termination of employment contract” while, on the other hand, section 12B is on “Dismissal.” That, on its own means a lot. The two sections provide for two different methods of bringing an employment contract to an end. The first method is through termination while the second is through dismissal.

It is now settled in our jurisdiction that, despite the provisions of section 12B of the Labour Act [Chapter 28:01] dealing with dismissal of an employee from employment in terms of an employment Code of Conduct, an employer retains the right to terminate employment on notice as provided for under the common law. Section 12B of the Labour Act does not concern itself with the general termination of employment by means other than in terms of a Code of Conduct be it an employer's Code of Conduct or the national Code of Conduct.

It is section 12(4) of the Labour Act [Chapter 28:01] which deals with the concept of termination of employment on notice.

It regulates the period of notice to be given for such termination. In Chirasasa v Nhamo N.O. and Anor 2003 (2) ZLR 206 (S), the court upheld the termination of employment where the parties had failed to agree on new conditions of employment. It was stated:

“In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calender months' notice and could exercise it without obtaining prior written approval of the Minister.”

The above reasoning was followed by this Court in Colcom Foods Limited v Kabasa SC12-04 where the following passage appears:

“In this case, it was conceded that there was no allegation of misconduct levelled against Kabasa. He was not being retrenched. It was his refusal to accept that his status was that of Human Resources Manager that caused the decision to terminate his employment with Colcom on notice. On the authority of Chirasasa's case supra, Colcom was entitled to terminate Kabasa's employment on notice.”

The court went on to state, in that case, that, as it was not an act of misconduct for the employee to refuse to accept the change in his conditions of service, the employer was not bound to terminate his employment in terms of the disciplinary procedure laid down in the employment Code of Conduct.

On the basis of that authority, it is clear that the court a quo was wrong in drawing the conclusion that the appellant should have conducted a disciplinary hearing following the respondent's refusal to report for duty. There was no need to proceed in terms of a Code of Conduct.

Quite recently, in the case of Nyamande and Anor v Zuva Petroleum (Private) Limited 2015 (2) ZLR 186 (S), this Court reiterated the correctness of the assertion that an employer has the right to terminate employment on notice. CHIDYAUSIKU CJ endorsed it in these words…,-

“The respondent appealed to the Labour Court. The Labour Court allowed the appeal. In its judgment, the Labour Court had this to say:

'In my view, therefore, the submission that section 12B came to do away with the possibility of terminating a contract of employment on notice is a misunderstanding of the law as it stands. In an event, the provisions of section 12(4) of the Act are clear and allow no ambiguity as also the provisions of section 12B. None of the sections have the effect of doing away with the termination of a contract of employment on notice.'

In essence, the Labour Court came to the conclusion that neither section 12B nor section 12(4) of the Act abolished the employer's right to terminate employment on notice. I respectfully agree with this conclusion.”

The learned Chief Justice went on, at p190 A-B, to make the following pronouncement:

“As I have already stated, it is common cause that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. That common law right, in respect of both the employer and the employee, can only be limited, abolished, or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament. I am satisfied that section 12B of the Act does not abolish the employer's common law right to terminate employment on notice in terms of an employment contract for a number of reasons.”

Having come to the conclusion that the appellant was entitled to terminate the employment without invoking the employment Code of Conduct, by giving the respondent notice of termination, it becomes superfluous to relate to the issue of the alleged variation of the terms and conditions of employment.

The authorities I have cited make it clear that a deadlock in negotiations over new terms of employment may entitle the employer to terminate on notice. See Colcom Foods Limited v Kabasa SC12-04.

I have said that the respondent shot himself in the foot by refusing to comply with transfer instructions - especially after he had accepted a new contract by signing it. If he was aggrieved by what he regarded as a unilateral alteration of his contract, he should have pursued his grievance while reporting for duty. By his intransigence he opened himself up for termination on notice.

On the other hand, the appellant had a lawful right to abandon discussions with the respondent and opt for termination on notice. There was no requirement for a disciplinary hearing because it was not an act of misconduct for the respondent to refuse to take up the new employment.

The judgment of the court a quo is wrong. It ignores all the rich authorities on the subject of termination on notice. It ought to be vacated.

Regarding the issue of costs, I see no reason why the costs should not follow the result.

In the result, it is ordered that:

1. The appeal succeeds with costs.

2. The judgment of the court a quo be and is hereby set aside and in its place be substituted the following:

“The appeal is hereby allowed and the arbitral award set aside with costs.”

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court, Harare handed down on 13 July 2005 in which the High Court granted with costs an application by the respondents declaring, inter alia, that they were entitled to payment of a mileage allowance of 4,000 kilometres per month calculated at the Automobile Association of Zimbabwe (AAZ) rates.

The facts of this case are these:

The respondents were employed by the appellant as Assistant Director, Credit Risk and Assistant Director, Debt Recovery, respectively. Both respondents signed revised contracts of employment in the year 2000 which stipulated their conditions of employment. The contract of employment provided, in paragraph 3, as follows:

“3. Motor Vehicle Use

You are entitled to the use of an Agribank company car under the prevailing terms and conditions. You are required to familiarize yourself with the existing rules and regulations for the use and disposal of the motor vehicle.

Or

You are entitled to purchase a motor vehicle under the prevailing motor vehicle scheme. You will use the car for business and claim in accordance with the existing rules and as amended from time to time. You are also entitled to a mileage allowance based on a mileage of 4,000 kilometres per month at the applicable standard AAZ rates.”…,.

The underlined portion of paragraph 3 is at the centre of the dispute in this matter.

By letter dated 30 August 2001, the appellant's Human Resources Manager wrote to the respondents advising them that, following the restructuring of management grades, the appellant's Board had approved the conversion of the company car scheme to a personal car scheme under the managers and field staff motor vehicle scheme with effect from 1 September 2001.

The conversion to a personal car scheme was done without reference to the respondents.

The conversion meant that the use of a company car was being done away with and the respondents would no longer access fuel and other facilities previously offered by the Bank in this regard. The respondents were offered a loan equivalent to the purchase price of their existing company vehicles and a monthly allowance of $30,300 to assist in “the cost of running the motor vehicle.”

It appears the respondents were not happy with the conversion to the new scheme, and, on 3 September 2001, wrote a letter to management raising various issues on the matter and threatening legal action because of what they perceived as a breach of contract.

One of the issues raised was their entitlement to an allowance based on a monthly mileage of 4,000 kilometres.

The response by the Managing Director of the appellant was that such an allowance “would ultimately be too expensive for the Bank to sustain” and that the change had been “influenced by the magnitude of the vehicle allowance cost and its sustainability.”

Thereafter, the parties engaged in considerable exchange of correspondence on the matter. The respondents continued to insist that they were entitled to the allowance. The appellant maintained that it could not justify payment of such a huge allowance.

The appellant eventually stated, by letter dated 14 April 2004, that the allowance had been included by mistake and that the intention had been to allow the respondents to use their personal vehicle and submit claims for such use under the Bank's prevailing terms and conditions.

In June 2004, the respondents then filed a court application seeking, inter alia, a declarator that they were entitled to payment of the allowance.

After hearing both parties, the High Court granted the application with costs. It is against that decision that the appellant has appealed to this Court.

The decision of the court a quo is attacked on four bases. These are:

(i)...,.

(ii)...,.

(iii) Thirdly, that the court a quo erred in failing to take into account the fact that in terms of the contract of employment agreed to by the respondents, the appellant could change its policies and procedures;...,.

WHETHER THE APPELLANT COULD ALTER THE RESPONDENTS' CONDITIONS OF SERVICE

The appellant has argued that, in terms of paragraph 11 of the contract of employment, the respondents undertook to subscribe to the Bank's policies and procedures currently in use and as revised and amended from time to time. Pursuant to this clause, so it is argued, a revised motor vehicle scheme came into existence with effect from 1 September 2001.

I do not accept, that on the basis of paragraph 11 of the contract of employment, the appellant was empowered to remove, without reference to the respondents, such a fundamental right as the entitlement to payment of a monthly mileage allowance.

If the appellant's argument were to be taken to its logical conclusion, on the basis of that paragraph, even the respondents' salaries could have been reduced.

I do not accept that the Bank, in amending its policies and procedures, was empowered to alter clearly defined contractual rights to payment of a salary and allowances.

Clause 3 of the contract of employment clearly states that the respondents were:

“…, entitled to a mileage allowance based on a mileage of 4,000 kilometres per month at the applicable standard AAZ rates.”

Such an entitlement could not be changed, altered, or amended at whim on the basis that the appellant was entitled to change its policies and procedures from time to time. A party to a contract cannot unilaterally alter the terms and conditions of the contract in these circumstances.

This submission must also fail.

In the result, I find that this appeal has no merit.

The appeal is dismissed with costs.

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

This is an appeal against the decision of the Labour Relations Tribunal, brought under section 92(2) of the Labour Relations Act [Chapter 28:01] ("the Act"), in which it was held, that, the omission of the respondent ("the PTC") to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

The factual background giving rise to the dispute, and upon which the question of law has been debated before this court, was succinctly outlined by the learned Chairman in his judgment. It may be restated as follows:

On 10 October 1984, the PTC invited applications for the post of Telephone Superintendent at its Gateway exchange in Gweru. Four such posts were to be filled by the lateral transfer of serving superintendents, or, if not available, by promotion from the grade of supervisor. The respondent was a Supervisor.

He applied.

After undergoing a two week training course, in April 1985, the appellant, and one Mahachi, a fellow Supervisor, were transferred, permanently, to Gateway Exchange with effect from 28 June 1985.

In April 1986, the appellant, and Mahachi, having by then acted for nine months, wrote to the Regional Telecommunications Manager requesting that they be appointed superintendents, as the two substantive posts at Gateway Exchange had not been filled. The immediate response to their veiled complaint was to offer them the choice of remaining in an acting capacity or being relieved of their positions.

Both resolved to continue as Acting Superintendents.

During February 1987, the appellant, and Mahachi, raised with the Senior Superintendent, Gweru, their concern at still awaiting substantive appointments; but to no avail. New posts, vacancies, and re-gradings were under freeze pending a review of the PTC's establishment.

Later that year, when the freeze was lifted, an exercise was undertaken by the PTC to fill the vacant substantive posts of superintendent at Gateway Exchange. Candidates were required to have attained five "O" level passes, including english language and mathematics, in the General Certificate of Education examination. There were no applicants with the stated qualification.

Neither the appellant, nor Mahachi, had obtained an "O" level pass in mathematics.

In January 1988, the Promotions Board of the PTC requested, and was granted, a waiver of the mathematics requirement for the post of Superintendent. The appellant, and Mahachi, thus qualified for promotion.

In the event, it was Mahachi, alone, who was appointed. The appellant was not, because, at that point in time, he was under investigation on charges of misconduct.

In September 1990, the PTC decided to advertise several posts, one of which was for a Superintendent at Gateway Exchange. The notice issued by it stated, explicitly, that, "O" level passes in english language and mathematics were required of the applicants.

The appellant applied, notwithstanding that he still lacked the mathematics qualification.

A supervisor from Harare Main Exchange also applied. He happened to satisfy the educational requirements: and so, it was he who secured the appointment.

Shortly, thereafter, on 5 February 1991, the appellant was informed, that, as a superintendent had now been appointed to Gateway Exchange, he was no longer needed to act in that capacity and was to be transferred back to Harare Main Exchange as a supervisor.

This was indeed a bitter pill for the appellant to swallow.

He had acted as superintendent at Gateway Exchange for a period of five years and seven months and was not prepared to comply meekly with the instruction that he revert to the grade of Supervisor. He immediately referred what he believed to be an unfair labour practice to a Labour Relations officer in terms of section 93(1) of the Labour Relations Act [Chapter 28:01]. A hearing was convened on 8 February 1991. The Labour Relations officer came to the conclusion that:

"The person who was appointed to fill the vacant post at Gateway Exchange was eligible for the post in terms of the Postmaster General's Circular No.8 of 1986, and in terms of the vacancy notice No.45 of 1990; the PTC acted within the parameters of its laid down policy, and, it was thus not guilty of an unfair labour practice in this regard."

Thereafter followed appeals to the Regional Hearing Officer and from him to the Labour Relations Board.

Section 8 of the Labour Relations Act specifies those acts or omissions which constitute an unfair labour practice by an employer.

Under section 10 of the Labour Relations Act, the Minister of Public Service, Labour and Social Welfare is empowered to prescribe, by statutory instrument, acts and omissions which constitute unfair labour practices and may vary, amend of repeal any such notice. Initially, such provision was made by the Minister in the Third Schedule to the Labour Relations (General) Regulations 1985 (S.I.368 of 1985); and, more recently, in the Second Schedule to the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993).

Those, then, are the particular acts or omissions deemed to be unfair labour practices which a Labour Relations Officer is mandated, by section 93 of the Labour Relations Act, to deal with.

It was not in contention, and rightly so, that the omission by the PTC to promote the appellant to the post of Superintendent, despite his long and good service when acting in that capacity, was one of the unfair labour practices specified in the legislation.

Nonetheless, the argument advanced was that the PTC had created a situation which caused the appellant to legitimately expect that he would be promoted to the post in which he was acting. The landmark judgment of CORBETT CJ in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) was prayed in aid.

In the above cited decision…, the learned Chief Justice elaborated upon the doctrine of legitimate expectation in these words:

"There are many cases where one can visualise in this sphere: where an adherence to the formula of 'liberty, property, and existing rights' would fail to provide a legal remedy when the facts cry out for one, and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should, in such cases, be made to reach out and come to the aid of persons prejudicially affected.

At the same time, whereas the concepts of liberty, property, and existing rights are reasonably well defined, that of legitimate expectation is not.

Like public policy, unless carefully handled, it could become an unruly horse: and, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the courts will, no doubt, bear in mind the need, from time to time, to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration."

The extension of the principle of natural justice, as enunciated in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) has been accepted by this court: see Health Professions Council v McGown 1994 (2) ZLR 329 (S)…,.; Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 776 (S).

Even if it be assumed (without in any way deciding the point), that, it was permissible for the Labour Relations Officer to accept the appellant's reference, albeit falling outside those definitive acts or omissions specified as constituting unfair labour practices, the particular facts seem to me to exclude a finding that the appellant had a tangible natural law right to be promoted to the post of Superintendent.

Most importantly, at the date the appellant was appointed an Acting Superintendent it must have been known to him that he lacked the necessary academic level in mathematics to secure the substantive post. It was only because there was no qualified applicants that the requirement for an "O" level pass in mathematics was waived in 1988. Hence Mahachi was promoted.

But, for the pending investigation, the probability is that the appellant would have been appointed as well, since there remained a vacancy at Gateway Exchange.

Colloquially speaking, that was a "one off" situation.

The waiver of mathematics was dictated by the prevailing circumstances. It was not to be a permanent relaxation: and, when, in September 1990, the PTC advertised the vacancy at Gateway Exchange, an "O" level pass in mathematics was once more a pre-requisite. The appellant had the experience but not the academic qualification.

How could he, therefore, legitimately or reasonably expect to obtain the appointment?

The decision not to promote him, in my opinion, was not one unfairly arrived at.

If the PTC had again waived the requirement of mathematics, the appellant's position might have been different. However, it is unnecessary to decide the outcome.

I would merely emphasise, as cautioned by CORBETT CJ, that, the need to avoid undue judicial interference in the administration of public authorities must always be placed in the balance.

Indeed, it could be submitted, with some persuasion, that, the promotion of an employee is a privilege left to the discretion of the employer, to be conferred when deemed fit. It is not a right that an employee is entitled to claim unless, of course, his contract of employment so provides.

For the aforegoing reasons, I would dismiss the appeal with costs.

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”

The following are the reasons:

BACKGROUND FACTS

The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine. His contract of employment provided for, amongst other things, locality allowance, leave bonus, and a company vehicle which was to be fuelled and maintained by the company.

In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund.

On 19 February 2009, the respondent wrote a letter to the appellant notifying him, that, following the adoption of the United States dollar, his salary would be US$4,147=43 per month.

The letter was silent on allowances.

On 21 March 2009, through an office memorandum, all the respondent's employees were notified of the changes in their salaries and allowances. The memorandum provided, that, the respondent had implemented salary scales based on regional 'SADC' rates for employees in all grades. Consequently, transport and meals allowances, together with leave bonus payable when employees proceeded on annual leave, were to fall away with effect from 1 March 2009 for all employees in Grade 10 and above. Transport and meals allowances were also removed for employees in Grade 10 and above.

The respondent further indicated that the employees would be kept abreast of further changes.

Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but, rather, supplied him with fuel and paid for the maintenance of his personal car.

This was regardless of the fact that the respondent's contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.

In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:

1. Outstanding locality allowance for the period from February 2009, when he was transferred to Renco Mine, up to the time when he made the complaint in June 2014;

2. Leave bonus from 2009 to 2013; and

3. Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.

At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration.

Before the arbitrator, the appellant argued, that, he was entitled to payment of outstanding locality allowances and leave bonus and to a motor vehicle coupled with its maintenance and repairs. The appellant had been using his personal vehicle for the respondent's business as the respondent had failed to provide the motor vehicle. For this reason, he claimed compensation on the mileage of his vehicle on the same basis as if it was on hire to the respondent.

The appellant also contended, that, the respondent had unilaterally varied the contents of the contract of employment.

The respondent raised a preliminary point.

It was to the effect, that, in the event that the appellant's contract was found to have been violated, the appellant's claims had prescribed in terms of section 94(1)(b) of the Labour Act [Chapter 28:01] (herein after referred to as 'the Act').

The respondent also argued, that, none of the respondent's contractual benefits were being violated.

The arbitrator dismissed the preliminary point.

In his award, he made the finding, that, all the claims made by the appellant had been sustained. He thus ordered the respondent to pay the sum of US$197,563 for compensation as had been claimed by the appellant. This was to be paid in two equal monthly instalments of US$98,781=50 with the final payment being paid not later than 1 October 2014.

APPEAL TO THE LABOUR COURT

Dissatisfied with the arbitrator's ruling and award, the respondent appealed to the Labour Court.

A number of grounds of appeal were raised. The court a quo summarized them to amount to:

1. That prescription applied to the claims and those claims that were older than two years had prescribed in terms of section 94(2) of the Labour Act [Chapter 28:01].

2. That the contract of employment was varied by the office memorandum, and by conduct, and that the arbitrator therefore erred at law in his interpretation of the facts.

3. That, there was no prejudice to the employee's remuneration as occasioned by the new method of payment.

4. That, the arbitrator had grossly misdirected himself in the relevant findings of fact so much as to amount to a misdirection at law.

After hearing the parties, the Labour Court allowed the appeal and set aside the arbitral award.

The Labour Court accepted the argument presented by the respondent. It came to the conclusion, that, once an infraction has occurred, and becomes known by the affected party, it prescribes if it is not actioned within two years from the date when the dispute first arose.

The court ruled, that, all the outstanding claims that were more than two years when the claim was instituted by the appellant had prescribed.

On whether or not there was unilateral variation of the contract, the Labour Court found, that, the contract had been unilaterally varied by the respondent.

In its judgment, the Labour Court stated, that, although there was unilateral variation of the contract by the respondent - for five years the appellant received his salary without any complaint. By so doing, the appellant, who was a human resources practitioner, had demonstrated, by conduct, that he accepted the new salary structures.

As a result, the allowances claimed by the respondent were no longer claimable as there was now a new contract in existence.

The Labour Court further found no merit in the appellant's claim which was based on the contention that he had been hiring out his personal motor vehicle to the respondent.

The court a quo found, that, there was no standing agreement between the parties to that effect, and, therefore, to say that the appellant had hired out his vehicle to the respondent would amount to overstretching the contract.

THIS APPEAL

The appellant was aggrieved by the judgment of the court a quo and appealed against its decision on the following grounds:

1. The Labour Court fundamentally misdirected itself on a question of law in failing to find that the claims of the Appellant had not prescribed, they being claims arising from unfair labour practices of a continuing nature covered by section 94(2) of the Labour Act.

2. The Labour Court further erred on a question of law in finding that the contract of employment between the Appellant and the Respondent had been varied such that the appellant would not be paid the claimed allowances.

3. The Labour Court further erred in law in failing to award the Appellant compensation in respect of the usage of his motor vehicle for the business purposes of the respondent.

At the beginning of the hearing, counsel for the appellant indicated that he was abandoning the third ground of appeal which related to the issue of the motor vehicle.

Notably, this ground formed the bulk of the appellant's claim. He therefore restricted his argument to the first two grounds which relate to the claims for outstanding locality allowance and leave bonus.

SUBMISSIONS ON APPEAL

Counsel for the appellant's contention was that the Labour Court erred in ruling that the appellant's claims had prescribed and he placed reliance on section 94(2) of the Labour Act.

He argued, that, the unfair labour practice commenced in March 2009 and continued until the matter was brought to the attention of the Labour Officer and to the Labour Court.

The gravamen of his argument is that the dispute was of a continuous nature, and, therefore, on the basis of section 94(2) of the Labour Act, no prescription could run.

He further contended, that, the appellant's rights, conferred by the Labour Act, were “frozen” during the period of his employment. Therefore, any infractions of these rights could only be actioned after termination of the employment relationship.

On variation of the contract of employment, the contention was that the introduction and operation of multi-currencies, in February 2009, did not operate to vary the contracts of employment in any way.

The respondent remained indebted in respect of the appellant's allowances.

Secondly, the memorandum issued in March 2009 was a unilateral act by one party to a contract of employment and did not have the effect of validly taking away vested rights.

Counsel for the respondent submitted, that, the rights accorded by the Labour Act are not “frozen” as there are remedies provided by the Labour Act for any infraction of the rights. He described the appellant's contention as “judicial heresy.”

Counsel for the respondent further submitted that section 94 of the Labour Act must be read together with section 8 of the same Act.

Section 94 of the Labour Act limits itself to unfair labour practices and these the appellant had not been able to identify. For this reason, he submitted, the protection of section 94 of the Labour Act was not available to the appellant.

The kind of infractions that the appellant complained about are infractions that gave him a full and competent cause of action within a period of two years. He submitted that the appellant's suggestion, that the two year period must be counted starting from after the end of the employment relationship, is not worthy of any notice due to its frivolity.

ISSUES FOR DETERMINATION

The issues for determination by this court are:

1....,.

2. Whether or not the contract of employment had been varied....,.

Whether or not the contract of employment was varied

The question must of necessity, therefore, be answered whether or not the contract was in fact varied unilaterally.

The appellant submitted, that, the change in currency, following the adoption of the use of the United States dollars, did not alter the contract of employment. He further contended that he was still entitled to the car loan, as per the contract of employment, which was operative during the time when the Zimbabwean dollar was in use.

Counsel for the respondent, on the other hand, submitted that the local dollar contract could not have had its terms transposed into the US Dollar period. It was his contention, that, in order to successfully advance the contention that there had been variation of the contract, the appellant had to first identify the contract expressed in United States Dollars, set out its terms and then show how it was unlawfully varied by the respondent.

As already mentioned earlier, the respondent issued out an internal memorandum, on 21 March 2009, following the adoption of the United States dollar currency.

This memorandum had the effect of altering the appellant's contract of employment.

Following the memorandum, the appellant, who was the Human Resources Officer, accepted his new salary in terms of the memorandum. He was receiving a salary in terms of the memorandum, and, for the five years, he never raised any complaint nor did he challenge the new salary scale.

It is trite, that, consent can either be express or implied.

In the case of Smith v Hughes LR 6 QB 597…, it was stated that:

“If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.”

For five years, the respondent accepted a salary, in terms of a memorandum which had no provision for any allowances. By such conduct, he accepted the variation of the terms of his contract of employment.

If he genuinely felt that the memorandum breached his contractual rights, he ought not to have accepted the salaries and ought to have mounted his challenge at the pertinent time or within the permitted period.

In the absence of any challenge to the variation of the contract, it is clear, that, after variation of the contract of employment, there was acquiescence by the appellant.

If there was acceptance of the variation, as there was, there was no claim to be prescribed.

It follows, that, by his conduct, the appellant impliedly consented to the variation of his contract.

In such circumstances, he could not claim any benefits flowing out of the contract that had been varied.

The court a quo thus correctly found, that, the contract of employment was varied with the consent of the appellant, and, therefore, the allowances claimed by the appellant were no longer claimable under the contract ushered in by the memorandum.

It is for these reasons that we found that the appeal had no merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

DETERMINATION OF THE COURT A QUO

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

ISSUE FOR DETERMINATION

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

WHETHER THE COURT A QUO ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

The use of 'all employees' leaves the Court unable to decide which of the two meanings propounded by the parties is correct

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

(2) The Minutes Accompanying the Agreement

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

DISPOSITION

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

BACKGROUND FACTS

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

PROCEEDINGS BEFORE THE LABOUR COURT

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court. It alleged that the Labour Court had erred:

(i) In determining that the respondents claim was not prescribed.

(ii) In confirming the finding by the Labour Officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which the appellant had not been a party.

(iii) In making a finding as regards the respondents attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.

(iv) In assuming review and/or appellate jurisdiction during the confirmation proceedings when the court has no such power.

In its heads of argument before this Court, the appellant has submitted as follows:

Section 94 of the Labour Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action.

The appellant further submitted, that, the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents.

It further submitted, that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits, and, consequently, no unfair labour practice has been perpetrated by it.

On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court a quo had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all.

Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the Managing Director.

The respondents pray that the appeal be dismissed with costs. They have submitted as follows:

In terms of section 94(2) of the Labour Act, prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a Labour Officer. The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents claim was therefore not prescribed.

The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter. The appellant had at all times accepted its obligation to pay the benefits.

They further argue, that, the order directing the appellant to pay tax penalties was proper and that the court a quo correctly exercised its confirmatory jurisdiction.

During oral argument, counsel for the respondents raised an objection to the submission by the appellant's counsel, that section 94(2) of the Labour Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.

She submitted that this was a new point being taken on appeal for the first time.

The effect of that submission was that section 94(2) of the Labour Act would not arise because the issue before the Labour Officer was a dispute and not an unfair labour practice. At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.

She submitted, that, in any event, regard being had to section 6(1)(e) of the Labour Act, the appellant's conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in section 8 of the Labour Act.

Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.

Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise.

He submitted, that, it was the appellant's primary position, that, there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents cause has always been that the conduct by the appellant, of withholding compensation, was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on section 94(2) of the Labour Act. What the court a quo determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents claims for compensation were prescribed.

ISSUES FOR DETERMINATION

From the foregoing, it seems to me that four issues arise for determination by this Court:

(i) The first issue relates to the question whether the matter referred by the respondents to the Labour Officer was referred as a mere dispute or an unfair labour practice, and, concomitantly whether the claim by the respondents had become prescribed.

(ii) The second issue is whether the court a quo was correct in confirming the Labour Officer's ruling that the appellant had an obligation to pay the benefits.

(iii) The third is whether the court a quo correctly confirmed the order directing the appellant to pay additional tax losses by the respondents.

(iv) The last is whether the court a quo could, in confirmation proceedings, re-hear submissions and amend the ruling....,.

WHETHER THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS LIABLE TO PAY THE BENEFITS

It was the finding of the labour officer, subsequently confirmed by the court a quo, that the appellant was under an obligation to pay the various outstanding amounts, notwithstanding its claim that it was not privy to the agreement that gave rise to the conferment of those benefits by its parent company.

The labour officer, in his draft ruling, found that the appellant had an obligation to compensate the respondents. He found that the appellant had authored the letter of 21 February 2011 to the individual employees undertaking to make such compensation. At no stage did the letter make reference to the compensation being a privilege or that the obligation to do so lay on its parent company.

The labour officer also found, that, it is common practice for an employee's pension to be held or administered by an entity other than the employer itself.

He also found it strange, that, whilst denying liability on the basis that the agreement was between the employees and the appellant parent company, the appellant was prepared to pay them had they agreed to move to the Triangle Money Plan.

The labour officer made findings of fact.

That these were made in the context of a draft ruling is neither here nor there. Those findings were not inconsistent with the evidence before him.

The labour officer accepted the position that the pension fund was administered by the Tongaat Hullett Pension Fund. The correspondence that forms part of the record confirms that the respondents enjoyed the benefits in question by virtue of their membership of the Pension Fund. Nowhere does the appellant show the existence of a separate agreement between the respondents and the holding company. Had there been such an agreement, the appellant would, no doubt, have produced it.

It did not do so.

What is apparent is that the respondents enjoyed these pension benefits by virtue of their employment with the appellant and not because the holding company had separately entered into agreements with the respondents to provide these benefits. Indeed, it was not in contention that the respondents did not have any other connection to the Tongaat Hullett Pension Fund except in their capacities as employees of the appellant.

In the letter of 21 February 2011, the appellant accepted that the “letter and conditions contained therein are part and parcel of the revised terms and conditions of employment.”

The court a quo agreed with the findings of the labour officer that it was the appellant that had the obligation to pay the benefits.

This was a finding made on a consideration of all the evidence. Such a finding cannot be impugned unless the appellant shows that it was irrational: Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.; Edward Misihairambwi & 14 Ors v Africare Zimbabwe SC22-17.

Absent demonstrable, material misdirections, and clearly erroneous findings, the Labour Court was bound by the findings.

No such finding can be made on the facts of this case.

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement....,.BRIEF ...

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.The agreement provided that the appellant would be an area manager responsible for Ngezi North.The preamble to this agreement read as follows:“Sandvik Mining and Construction Zimbabwe have entered into an agreement ...

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Law Portal
Zimbabwe

Employment Contract re: Transfer or Secondment of Employees, Variation of Conditions of Service & Disguised Retrenchments

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU
Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO
Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS
Ruled By: NDOU J

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA
Ruled By: CHEDA AJ

HB106-14 : MIRIRAI SHUMBA vs MINISTER OF JUSTICE AND LEGAL AFFAIRS and THE DIRECTOR OF PUBLIC PROSECUTIONS and THE ATTORNEY GENERAL'S OFFICE CIVIL DIVISION
Ruled By: MOYO J

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

HMA07-17 : CHARLES MASANGO and GLORIA MASAWI vs MINISTER OF PRIMARY & SECONDARY EDUCATION N.O. and PUBLIC SERVICE COMMISSION and DISTRICT SCHOOLS INSPECTOR N.O.and HEADMASTER, CHINGOMA HIGH SCHOOL
Ruled By: MAFUSIRE J

HH162-11 : BYL MANYANGE vs OBERT MOSES MPOFU and BREZHNEV MALABA and ZIMBABWE NEWSPAPERS (1980) LIMITED
Ruled By: PATEL J

HB146-16 : ADMIRE MAHACHI and NYARAI MPOFU and EMMANUEL MUGUTO and KNOWLEDGE SHAMHU vs OFFICER COMMANDING MATABELELAND SOUTH PROVINCE, N.O and COMMISSIONER GENERAL OF POLICE N.O.
Ruled By: MOYO J

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

View Appeal
SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

HMA30-18 : CHIDO MUROMBEDZI vs SMM HOLDINGS [PVT] LTD
Ruled By: MAWADZE J and MAFUSIRE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

Categories

Law Portal Zimbabwe

Employment Contract re: Transfer or Secondment of Employees, Variation of Conditions of Service & Disguised Retrenchments

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL Ruled By: GOWORA J

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS Ruled By: NDOU J

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA Ruled By: CHEDA AJ

HB106-14 : MIRIRAI SHUMBA vs MINISTER OF JUSTICE AND LEGAL AFFAIRS and THE DIRECTOR OF PUBLIC PROSECUTIONS and THE ATTORNEY GENERAL'S OFFICE CIVIL DIVISION Ruled By: MOYO J

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED Ruled By: MALABA DCJ

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

HMA07-17 : CHARLES MASANGO and GLORIA MASAWI vs MINISTER OF PRIMARY & SECONDARY EDUCATION N.O. and PUBLIC SERVICE COMMISSION and DISTRICT SCHOOLS INSPECTOR N.O.and HEADMASTER, CHINGOMA HIGH SCHOOL Ruled By: MAFUSIRE J

HH162-11 : BYL MANYANGE vs OBERT MOSES MPOFU and BREZHNEV MALABA and ZIMBABWE NEWSPAPERS (1980) LIMITED Ruled By: PATEL J

HB146-16 : ADMIRE MAHACHI and NYARAI MPOFU and EMMANUEL MUGUTO and KNOWLEDGE SHAMHU vs OFFICER COMMANDING MATABELELAND SOUTH PROVINCE, N.O and COMMISSIONER GENERAL OF POLICE N.O. Ruled By: MOYO J

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED Ruled By: MAKONESE J

View Appeal SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI Ruled By: GARWE JA, GOWORA JA and BERE AJA

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA Ruled By: MAKARAU JA, GOWORA JA and BERE JA

HMA30-18 : CHIDO MUROMBEDZI vs SMM HOLDINGS [PVT] LTD Ruled By: MAWADZE J and MAFUSIRE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED Ruled By: MAFUSIRE J

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC200-97 : MUWENGA vs PTC Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and BHUNU JA

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Law Portal
Zimbabwe

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU
Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO
Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS
Ruled By: NDOU J

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA
Ruled By: CHEDA AJ

HB106-14 : MIRIRAI SHUMBA vs MINISTER OF JUSTICE AND LEGAL AFFAIRS and THE DIRECTOR OF PUBLIC PROSECUTIONS and THE ATTORNEY GENERAL'S OFFICE CIVIL DIVISION
Ruled By: MOYO J

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

HMA07-17 : CHARLES MASANGO and GLORIA MASAWI vs MINISTER OF PRIMARY & SECONDARY EDUCATION N.O. and PUBLIC SERVICE COMMISSION and DISTRICT SCHOOLS INSPECTOR N.O.and HEADMASTER, CHINGOMA HIGH SCHOOL
Ruled By: MAFUSIRE J

HH162-11 : BYL MANYANGE vs OBERT MOSES MPOFU and BREZHNEV MALABA and ZIMBABWE NEWSPAPERS (1980) LIMITED
Ruled By: PATEL J

HB146-16 : ADMIRE MAHACHI and NYARAI MPOFU and EMMANUEL MUGUTO and KNOWLEDGE SHAMHU vs OFFICER COMMANDING MATABELELAND SOUTH PROVINCE, N.O and COMMISSIONER GENERAL OF POLICE N.O.
Ruled By: MOYO J

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

View Appeal
SC26-18 : T. M. SUPERMARKETS (PRIVATE) LIMITED vs ITAYI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI
Ruled By: GARWE JA, GOWORA JA and BERE AJA

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

HMA30-18 : CHIDO MUROMBEDZI vs SMM HOLDINGS [PVT] LTD
Ruled By: MAWADZE J and MAFUSIRE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA