Wonder Chenjerai v Sun Estate (Private) Limited

### Preamble
1
HH 213-13
HC 145/12
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WONDER CHENJERAI

versus

SUN ESTATE (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 2 July 2013 and 10 July 2013

Opposed Matter

N Bvekwa, for the plaintiff

T H Chitapi, for the defendant

MTSHIYA J:	This is an application for exception.

On 9 January 2012 the plaintiff issued summons against the defendant for the following relief:

“(a)	payment of US$88 500-00 the balance due to the plaintiff for his salary;

(b)	interest at the prescribed rate per annum from 1 April 2010 to date of full payment; and

(c)	costs of suit on the level of legal practitioner and client scale.”

It is common cause that on 8 July 2008 the plaintiff was appointed by the defendant as a Group Financial Director and Company Secretary at a salary of US$600-00 per month payable in Zimbabwe dollars. Let me hasten to say the appointment letter in the file is not signed by either of the parties.

On 8 December 2009 the plaintiff gave his notice of resignation with effect from 10 March 2010 i.e. giving an effective notice of three months. In his letter of resignation he gave details of his salary arrears. There is no indication in the file that the indicated salary arrears were ever accepted by the defendant. There is therefore no acknowledgment of debt from the defendant in respect of the arreas. However, the relief referred to above was in respect of the said salary arrears.

On 24 January 2012, upon being served with summons, the defendant requested for further particulars. Further particulars were submitted on 2 February 2012.

On 22 February 2012, after delivery, of the further particulars, the defendant filed a special plea excepting to the plaintiff’s claim. It is that special plea that falls for determination in casu.

The defendant submitted that there was a labour dispute between the parties and as such this court had no jurisdiction. In making that submission, the defendant relied on s 13 (1) of the Labour Act [Cap 28:01] (“the Act”) which provides as follows:

“13	Wages and benefits upon termination of employment

(1)	Subject to this Act or any regulations made in terms of this Act, whether any person-

(a)	is dismissed from his employment or his employment is otherwise terminated; or

(b)	resigns from his employment; or

(c)	is incapacitated from performing his work; or

(d)	dies;

he or his estate, as the case may be, shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, medical aid, social security and any pension, and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.” (My own underlining)

In view of the above provisions in the Act, the defendant prayed for the dismissal of the plaintiff’s claim, specifically arguing that the claim is based on an allegation of an “unfair labour practice” and therefore this court has no jurisdiction to entertain the matter.

Initially, the plaintiff raised a point in limine arguing that the matter had been unprocedurally set down. The point in limine was, however, abandoned at the commencement of the hearing.

On his part and relying on a number of authorities the plaintiff argued that since his resignation the employer-employee relationship had ended. In the main he relied on the submissions that were made in Blue Ribbon Foods Limited v Dube N O & Anor 1993 (2) ZLR 146 (S) where an employee on suspension had secured another job.  However, I believe that the plaintiff should have taken note of the following conclusion from that judgment. In that case, McNALLY JA, made the following conclusion, which I shall quote at length.

“It seems to me to be clear therefore that Gonyora ceased to be an employee when he took other employment.

I am not convinced, however, that this is the end of the matter. Gonyora’s rights as an employee existed at the time he noted his appeal against the decision of the Labour Relations Officer. He was entitled to a full re-hearing in terms of s 17 of SI 368/85, as read with s 15 of the same Statutory Instrument. Once that right is vested he is entitled to an order, whether or not his status is subsequently altered. Obviously reinstatement would not at that stage be a viable option, but an order that back-pay be paid up to the time of the termination of employment could be made in terms of s 111(2)(a) of the Act.

Although the matter was not dealt with at the hearing quite on this basis, Mr Dyke did make virtually the same point when he submitted that a former employee should be entitled to claim back-pay wrongfully withheld, as long as he instituted proceedings in terms of the Act while he was still an employee.

Blue Ribbon Foods, after all, had sought authority to dismiss him and had been given that authority by the Labour Relations Officer. Gonyora had a right of appeal against the whole, or, presumably, part of that order. Once he exercised that right, and subsequently took alternative employment, it seems to me that he was doing no more than waive part of his right, namely his right to claim reinstatement and his right to claim pay and allowances beyond the date of his assuming other employment. His taking alternative employment was, in short, not to be seen as a breach of contract but as a partial waiver of his right.

Gonyora was no longer entitled to ask for reinstatement, but he was still entitled to claim back-pay. That is what (leaving aside the factual issue as to whether the decision was right) he should have been awarded. So his claim is not to be seen as a claim for damages but as a claim for back-pay up to the date of his accepting other employment.

I would not therefore uphold the first ground of appeal.” (My own underlining)

Given the above authority, where I equate back pay to salary arrears, my understanding of the law is that what was terminated is the employment contract. The dispute over salary arrears that accrued during the course of employment remains until resolved in terms of the law. The arrears in casu are alleged to have accrued before the plaintiff terminated his employment with the defendant. Under item 3 of his letter of resignation dated 9 December 2009 the plaintiff avers.

“(3)	Arrear Remuneration

Information below will assist in determining arrear remuneration to be settled. You will recall that I have not been getting regular monthly salary of US$6 000 from July 2008 to June 2009 as per our agreement. In July 2009 you advised through an sms that you were happy to cap the outstanding salary at what it was. The monthly salary for the period from July 2009 to-date has not been communicated to me after you said you were going to consider it during Heroes holiday in August 2009. The table below shows what was due on monthly basis and what was received and the balance on the capped figure, before considering July to December 2009 salary.

Salary rate	Payment	Balance

Month			US$		Received	due

July -08		6,000				6,000

Aug-08		6,000				12,000

Sep-08			6,000		10,000		6,000

Oct-08			6,000			          14,000

Nov-08		6,000			          20,000

Dec-08			6,000			          26,000

Jan-09			6,000			          32,500

Feb-09			6,000		2,500	          35,500

Mar-09			6,000			          41,500

Apr-09			6,000			          47,500

May-09		6,000			          53,500

Jun-09			6,000			          59,500

Jul-09			  -			          59,500

Aug-09		  -		                      59,500

Sep-09			 -		10,000           49,500

Oct-09			 -			          49,500

Nov-09		 -			          49,500”

Clearly the plaintiff’s rights, which were never the subject of agreement, accrued prior to termination of employment and the demand for payment was also made prior to the said termination of employment.

In his book Dismissal Discrimination & Unfair Labour Practices (Second Impression 2007) at p 39 John Grogan states, in part:

“Otherwise, an employee’s protection against unfair labour practices by a particular employee ends with the termination of his or her employment, in the common law sense of that term. Furthermore, only employees, as defined, may refer disputes concerning unfair labour practices to the appropriate forums. However, an employee who has been dismissed or who has resigned may still claim compensation for an unfair labour practice perpetrated during the course of his or her employment.” (My own underlining)

The law is therefore clear. Failure to pay the salary arrears is an unfair labour practice which, in our law, is criminalised. The Act lays down what the plaintiff can do under such circumstances. He can approach a labour officer or report the matter for it to be dealt with in terms of s 13(2) of the Act. The plaintiff, in my view, has therefore approached the wrong forum for relief. The Labour Court has exclusive jurisdiction to deal with the matter.

Accordingly it is ordered as follows:-

The special plea be and is hereby upheld, and

The plaintiff shall pay costs of suit.

Bvekwa Legal Practice, plaintiff’s legal practitioners

T H Chitapi & Associates, defendant’s legal practitioners