Ariston Holdings Ltd v Banga Matengavhu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/147/14
HELD AT HARARE 3RD MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/147/14

HELD AT HARARE 3RD MARCH 2014			CASE NO LC/H/572/12

&14TH MARCH 2014

ARISTON HOLDINGS LTD				Appellant

BANGA MATENGAVHU				Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr R Mutasa, Attorney

For Respondent		Mr B Matengavhu, Respondent

MUSARIRI, G:

On 28th May 2012 the Honourable H Muchinako made an arbitration award.   In terms thereof he awarded Respondent back-pay, gratuity and an order of reinstatement in employment by Appellant.  Aggrieved by the award, Appellant appealed to this Court.  Respondent opposed the appeal.

The grounds of appeal were three-fold as follows,

“1. The award, whose effect is to enforce a contract and entitle back-pay to the employee is grossly unreasonable at law in further ordering payment of gratuity which was not due at law.

2.  The Arbitrator erred at law in failing to find that an employee who does not tender services at the workplace as required is not entitled to payment of any salary and benefits for days not worked.

3.  The Arbitrator erred at law in directing payment of salary and benefits to the Respondent for days not worked for.”

The genesis of the parties’ dispute is found in Appellant’s letter to Respondent dated 1st March 2011.  The contents read thus,

“Reinstatement – Transfer

Following the discussion held on 28 February 2011, we write to advise you that you will be relocated to Kent Estate.  We again state that your conditions of service will not change except that you will be working at Kent Estate as intended and discussed before.  This reinstatement is with effect from 1 March 2011.  You will be relocated to the working places by 1st March 2011 and your family will be transferred a month later or the other way round of going with your family and property at the same time.””

Respondent lived in and worked for Appellant in Marondera.  He understood the last paragraph above to mean that Appellant would transport him together with his family and property to Kent in Norton.  Appellant apparently expected Respondent, who is disabled, to find his way to Norton.  Because he did not turn up in Norton, Appellant ceased paying Respondent’s wages.  The transfer letter above promised Respondent that “you will be relocated…”   Evidently Appellant assumed the responsibility to relocate Respondent.  Indeed it was Appellant’s duty as the employer to relocate its employee upon transfer.  Appellant did not relocate the employee.  Therefore it was not the fault of the Respondent that he did not pitch up in Norton to render services to his employer.  Rather it was the fault of Appellant who failed to honour its promise.  On that basis, I agree with the Arbitrator that Respondent was entitled to his back-pay  and benefits.

However the Arbitrator erred by proceeding to award a gratuity to Respondent.  A gratuity is payable upon termination of employment. The employment contract incasu has not been terminated.  That much was conceded by Appellant’s attorney.  Indeed it was on that basis that he argued against the award of a gratuity.  Such gratuity as shall become due, shall be payable upon termination of the employment contract by either or both of the parties.

Wherefore it is ordered that;

The appeal is hereby partially allowed so that the arbitration award is varied by the deletion of gratuity and the reduction of the total amount payable to  US$5 725.81 ; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E