Appellant v Respondent (Labour Appeal)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/26/2024
HARARE, 27 NOVEMBER 2023 & 30
JANUARY 2024
CASE NO LC/H/1058/22
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Before the Honourable Kudya J

For the Appellant	Cleopas Chigwade	(Unionist) For the Respondent	Mr B. Madhavi (Legal Practitioner)

KUDYA, J:

This is an appeal and cross appeal against the decision of the designated agent who ruled that appellant had been irregularly dismissed and ordered that he be reinstated without loss of salary and benefits or that he be paid damages for the loss of his job as a watchman with the respondent employer.

In his appeal the appellant cited 2 grounds to the effect that the Designated Agent correctly found that his employment had been unlawfully terminated but erred in not awarding him damages at the pay rate of USD$258 which was the rate in operation from July 2022 per the Industry CBA. He also claimed that reinstatement entailed the recognition of an employee as one on a contract without limit of time and to that end the Designated Agent should have ordered payment as the rates prevailing at the time of the claim (5/8/2022).

In the result appellant prayed that the DA’s decision be set aside and substituted with order that he be reinstated without loss of salary and benefits and if reinstatement is not possible that he be paid USD 4797 and ZWL 118 925.

In response to the appeal the respondent employer maintained in limine that the appeal was bad at law as it sought to appeal part of the award without specifying which part and as it sought to have the whole award vacated yet the appeal was only in part. It responded to the appeal in further terms that no good case of appeal was before the court because the issue of reinstatement had neither been pleaded nor argued by the parties so it could not be made to stand. It stated also that if appellant had any entitlement it could not be quantified using the USD 258 rate which only came into effect way after appellant’s job loss and could thus not have retrospective effect. In the result it prayed that the appeal be struck off the roll for being out of sync with the law and if it is decided on merits it be dismissed for lack of merit.

The respondent counter appealed that the Designated Agent’s award was irregularly birthed in that it decided the issue of reinstatement which was not before the Designated Agent and not argued before him. It also stated that the Designated Agent made an award for appellant where no evidence had been rendered of what was indeed due to appellant. It finally appealed that the Designated Agent should have found that the appellant owed it a loan of USD450 which should be offset from what appellant claimed he was owed.

In reaction to the cross appeal the appellant was adamant that the DA was correct to find that he had been irregularly dismissed and that he was to be reinstated but such should have been followed by an order of payment at the rate of UZSD 258 per month which was effective from July 2022. In the result the appellant prayed that the cross appeal be dismissed and that his appeal succeeds. Each of the issues arising out of the appeal, the cross appeal and the point in limine are addressed below:

Point in limine

It is settled that appeal grounds should be clear and concise. See Kunonga v CPCA SC-25-17. In the case at hand appellant sets out that he is happy with the reinstatement order but unhappy with the rate used for calculation of damages due to him. He however errs by seeking that the whole award be vacated yet he is only seeking appeal against part of it. The court is of the view that the appeal grounds through inelegantly crafted do set out what appellant is unhappy about. To that end they pass the test of being good grounds the error on the relief notwithstanding. The court is satisfied that no good point in limine has been set out to justify the striking off of the appeal. The point in limine being without merit it be and is hereby dismissed.

Reinstatement

It is settled that a case stands falls on the founding papers See Mangwiza v Ziumbe B.O. 2000

ZLR 489. It is clear from the pleadings before the DA that issues of unlawfulness of the dismissal or reinstatement were not pleaded or argued. To that extent it was irregular for the Designated Agent to deal on issue that was not argued before him See Munzaro v Kashumba SC-18-18. The court is satisfied that the cross appeal as regards the reinstatement component of the matter is well placed and should succeed. The point speaking to reinstatement relief should therefore be vacated on the Designated Agent’s order.

Quantification in USD

Appellant says his dues should have been calculated using USD 258. It is clear from the papers on record that at the time the appellant suffered loss he was not being remunerated in USD. To that extent he cannot impute the provisions of the July 2022 CBA to apply to his claim. In the light of this reasoning the appeal vis a vis use of the USD rate is without merit and should fail.

USD 450 LOAN

All that is on record is a document saying debtors and with the figure US$450 on it. There is no acknowledgement of debt attached to demonstrate the alleged and indebtedness of the appellant. The issue of us$450 being without foundation cannot cause the success of the cross appeal. Such is equally dismissed. In the ultimate it is clear that the cross appeal vis the loan has no merit and it should fail. To that extent the Designated Agent’s order should stand as it is on the figures awarded by the DA. The cross appeal succeeds to the extent of the removal of the reinstatement component and fails on the $450 loan.

IT IS ORDERED THAT

Appeal vis the use of $258 USD rate being without merit it be and is hereby dismissed. Cross appeal vis the reinstatement component being merited it be and hereby succeeds. Cross appeal vis the $450USD loan be and is hereby dismissed. The Designated Agent’s order of 25 October 2023 be and is hereby set aside and substituted with the following order.

Respondent pays appellant

1) 3 months notice pay ZWL 27 430,26 x 3 =  $82 290,78

Outstanding salary for March and April ZWL 18286,64 + ZWL 27 430,26 = ZWL 45717,10

Housing allowance for March 2022 and April 2022

ZWL; 2625,00 + ZWL3937,50  = ZWL 6562.50

LC/H/2024

LC/H/

Cash in lieu of leave for  66 days ZWL27430,26 x 3 months ZWL 82 290,78.

Gratuity for 15 years

ZWL 27430,26 X 20% X 15 YEARS

ZWL 82 290,78

ompensation for loss of employment 15 years x ZWL 27430,29 = $205 726,98 Total $504878,89.