CHIGUMBA
J:
The
new Constitution of Zimbabwe has restored the jurisdiction of the
High Court over purely labour matters at first instance. The Labour
Court's exclusive jurisdiction over all purely labour matters at
first instance has been overridden by the Constitution.
Plaintiff
issued summons on 25 March 2011 for the payment of a sum of
USD$8,936-56, being the balance due to him from the defendant in
terms of an agreed early retirement package. The defendant adopted
the stance that it had paid all the amounts due to the plaintiff in
terms of the parties' agreement.
The
issue that the court must determine is whether the amounts paid to
the plaintiff by the defendant for October, November and December
2010 constituted notice pay in terms of the early retirement package,
and whether the additional payment of cash in lieu of leave and other
benefits paid during October-December 2010 also formed part of the
early retirement package. If they did not, then the plaintiff's
claim must succeed.
The
court directed the parties to address it on whether this was a purely
labour matter, and if it was, whether this court's jurisdiction was
ousted by the terms of the Labour
Act [Chapter 28:01].
I
am grateful for the submissions made by both counsel for the
defendant and counsel for the plaintiff, which provided great
assistance to the court in resolving this issue.
Section
171(1)(a) of the Constitution of Zimbabwe
provides that;
“The
High Court has original jurisdiction over all civil and criminal
matters throughout Zimbabwe”.
Section
89(6) of the Labour Act provides that:
“89
Functions, powers and jurisdiction of Labour Court
(1)
The Labour Court shall exercise the following functions —
…
(6)
No court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).”
The
import of the provisions of section 171(1)(a) of the current
Constitution is to reinstate the jurisdiction of this court over
labour matters at first instance, which jurisdiction had previously
been ousted by section 89(6) of the Labour Act. See Confederation
of Zimbabwe Industries v Rita Marque Mbatha,
and Capri (Pvt) Ltd v Maponga.
It
is an inescapable conclusion that the Labour Court no longer enjoys
exclusive jurisdiction over labour matters at first instance. That
exclusitivity, which was based on an Act of Parliament, was
overridden by the Constitution. It is therefore no longer necessary
to consider whether a matter is purely labour at first instance
before assuming jurisdiction to determine it.
Counsel
for the plaintiff submitted that, in any event, the facts do not
support the supposition that this is a 'purely' labour matter, a
fact which would have allowed this court to 'assume jurisdiction'
over it before the provisions of section 171(1)(a) of the current
Constitution came into force.
I
found this submission persuasive, taking into consideration previous
findings of this court that agreements which emanate from contracts
of labour (where the cause of action and the remedy for that cause of
action are at common law) are enforceable on the basis that they are
not 'purely labour' matters which this court was previously
precluded from hearing at first instance. See Arnold
Sikhumbuzo Mahlangu v
CZL Incorporated (Pvt) Ltd,
Madinda Ndlovu vHighlanders
Football Club,
Medical Investments Limited
v
Pedzisayi.
Having
concluded that the court was cloaked with the requisite jurisdiction
to determine the matter, trial commenced.
From
the evidence adduced during the trial, the pleadings and the
documentary evidence submitted to the court the following facts are
common cause;
Plaintiff
is a former employee of the defendant who requested that he be given
an early retirement package, three months before the date on which he
was due to reach retirement age. In October 2010, in response to
plaintiff's request, a retirement package was negotiated between
the parties. It was agreed that the plaintiff would be paid a sum of
USD$25,873-12 by 31 December 2010.
On
5 October 2010, the parties signed an agreement which was titled
'Innocent Chitiki: Early Retirement Package'. Under 'statutory,
benefits', the plaintiff was to be paid a total of USD$11,148-00,
which was made up of 3 units of notice pay, cash in lieu of leave,
leave bonus, housing benefits during notice plus one month up to 31
October, full benefits except business allowances during notice
period telephone allowances. 'Other' benefits totaling
USD14,725-12, included a vehicle, annual bonus, fuel up to one month
after notice, term 1 school fees, service pay and additional
gratuities such as relocation to Gokwe rural home at defendant's
expense.
It
is common cause that it was part of the early retirement package
that; all salaries and monthly benefits were to be paid as and when
due up to 31 December 2010, all other benefits were to be paid in
December 2010, the vehicle was to be released immediately.
It
is common cause that the defendant was told to stay at home during
the notice period and that the fact that he was not required to
report for duty was defendant's standard practice for retiring
employees who worked in sensitive areas that were vulnerable to
security breaches.
It
is common cause that the plaintiff wrote a letter to the defendant
asking for payment of his package to be deferred until after 31
December 2010 the date when he officially reached retirement age, in
order to avoid incurring punitive tax obligations. It is common cause
that that the plaintiff initially wanted to be paid a package of
USD$50,000-00 and that he felt shortchanged by the final sum of the
negotiated package.
The
plaintiff's claim appears to be premised on the supposition that he
ought to have been paid notice pay, as well as his monthly salary and
benefits for the three month notice period during which he did not
report for duty at defendant's specific instance and request.
Plaintiff understood that he would be paid the 'full package' on
31 December 2010. The monthly salary that he received in September,
October, and November 2010 was not part of his three month notice
pay, in his view.
Is
this claim supported by the evidence, or by the agreement between the
parties? If it is, plaintiff is entitled to be paid the sum of
USD$8,936-56 which he is claiming from the defendant. Plaintiff told
the court that his contract of employment with the defendant
terminated on 31 December 2010 and that the payments made to him
prior to that were his normal monthly salaries and benefits and did
not form part of the retirement package. This evidence was directly
controverted by the evidence of the two defence witnesses, Cindirella
Masimbe and Effort Lungu.
The
defendant's witnesses told the court that it was defendant's
policy to pay cash in lieu of service of the notice period especially
for senior executives such as the plaintiff who worked in sensitive
positions. They explained the payments made to the plaintiff in terms
of exhibit 7, the gross amounts, and the net amounts paid. Their
evidence was that plaintiff was paid a slight excess of the agreed
sum in the early retirement package.
Mr.
Lungu was emphatic that the entire retirement package was reduced to
writing and signed on the 5th
of October 2010, and pointed to the notes on exhibit 7 which clearly
stated that; “…all elements that were outstanding from previous
meetings have been resolved and agreed …”, and “….all
salaries and monthly benefits to be paid as and when due up
to
31 December 2010”. (my emphasis). This referred to the notice pay
which according to the defendant was to be paid in monthly
installments to avoid the punitive tax regime prejudicing the
plaintiff who only attained the retirement age in December 2010.
In
a civil case, the plaintiff must prove its case on a balance of
probabilities. This has been interpreted to mean that:
“It
must carry a reasonable degree of probability but not so high as
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than not' the burden
is discharged, but if the probabilities are equal it is not”.
See
Milner
v
Minister of Pensions,
and
Thulisani
Dube Nyamambi v
Bongani Ncube .
In
the case of Zimbabwe
Electricity Supply Authority v
Dera ,
the
court said that:
“…
in
a civil case the standard of proof is never anything other than proof
on the balance of probabilities. The reason for the difference in
onus between civil and criminal cases is that in the former the
dispute is between individuals, where both sides are equally
interested parties. The primary concern is to do justice to each
party, and the test for that justice is to balance their competing
claims. In a criminal matter, on the other hand, the trial is an
attack by the State, representing society, on the integrity of an
individual. The main concern is to do justice to the accused. If the
prosecution fails, the State does not lose.”
The
learned authors
Hoffmann & Zeffertt,
in
their book SA
Law of Evidence
state that;
“There
are no exceptions to the rule that all issues in a civil action are
decided upon a preponderance of probabilities.”
In
Joubert,
The Law of South Africa
the learned author says that:
“In
civil proceedings, proof is furnished upon a preponderance of
probability and this is the case even when allegations of criminal or
immoral conduct are to be proved.”
Accordingly,
we must balance the plaintiff's claim against the defendant's
defence, and in so doing, decide which of their versions is more
likely to be true. In other words which version is more believable,
or most likely to have transpired, than the other.
The
preponderance of probabilities is an exercise which involves an
evaluation and an assessment of the likelihood of the plaintiff's
version being the correct one as opposed to the defendant's, or
vice
versa.
In making this decision we look at the pleadings, at the documentary
evidence, and at what the parties' representatives said and did
while they were in the witness stand.
The
plaintiff did not come across as a person who deliberately set out to
mislead the court. What was clear was that he felt that the defendant
had misled him into accepting less money than what was due to him,
what he was entitled to, and what he wanted, which was USD$50,000-00.
What was equally clear, was that the plaintiff was under the mistaken
impression that the word 'package' referred to a lump sum, one
off payment.
Operating
under that misapprehension, he happily accepted the equivalent of his
monthly salary for September- December 2010, while carefully planning
how he would spend his 'package' once he got to his rural home in
Gokwe. He suffered a rude awakening when he was paid his 'package'
less three months cash in lieu of notice. He was angry, and confused.
The
defendant told him that because he did not report for duty during
those three months he was not entitled to a monthly salary, only cash
in lieu of notice. But it was defendant's policy not to allow
senior executives to report for duty during the notice period.
The
defendant may have been crafty, or devious in its negotiations with
the plaintiff. But if the unwittingly plaintiff agreed to be
shortchanged, is it our place in these proceedings to make that right
when he agreed and signed for what he believed he was entitled to?
The
evidence supports the fact that the plaintiff asked the defendant to
defer payment of his package until January 2011 after he had reached
the official retirement age to avoid paying punitive tax. There is no
evidence that the parties agreed that the 'full package' would be
paid in January 2011. The payment plan which appears on page 9 of
exhibit 7 supports the contention made on behalf of the defendant
that the cash in lieu of notice pay and the cash in lieu of leave
were to be paid to the plaintiff on a monthly basis in October,
November and December 2010. Although in terms of exhibit 1 plaintiff
made it clear that it was his intention to serve notice from October
– December 2011, in reality that is not what transpired. The
plaintiff did not report for duty during that period. He was aware of
the defendant's policy. His evidence that other senior executives
who did not report for duty during the notice period were paid their
full salaries as well as cash in lieu of notice was bald, and
unsubstantiated. There is no evidence that the parties agreed that
the whole package would be paid in December 2011 when the early
retirement agreement itself contains contrary evidence.
The
plaintiff failed to discharge the onus on him to prove his case on a
balance of probabilities. The probabilities raised by the evidence,
coupled with the facts which are common cause, do not support the
plaintiff's version of events, and do not entitle him to the relief
that he seeks. On the contrary, the probabilities support the
defendant's version especially on the crucial point of whether
there was ever any agreement between the parties that the package be
paid as a whole at the end of January 2011, and whether the plaintiff
had been given assurances that despite not being required to report
for duty, he would be paid his normal salaries and benefits until
December.
For
these reasons, the plaintiff's claim is dismissed with costs.
Messrs
Dzimba, Jaravaza & Associates, plaintiff's
legal practitioners
Messrs
Gill, Godlonton & Gerrans, defendant's
legal practitioners
1.
Constitution of Zimbabwe Amendment (No. 20) Act, 2013
2.
HH125-15
3.
HH92-15
4.
HH27-13
5.
HB95-11
6.2012
(1) ZLR 111 @ 114D-F to 115 A-B
7.
1947 2 All ER 372 @ 374
8.
HB82-15
9.
1998 (1) ZLR 500 (SC)
10.
4 ed at p 528
11.
vol
9 para 573 p 340
