Austin Rajabu v J.H. Butler Farms Ltd.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.LC/H/264/23
HARARE, 1 FEBRUARY, 2023 CASE NO. LC/H/880/22
AND 08 SEPTEMBER 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO.LC/H/264/23 HARARE, 1 FEBRUARY, 2023		CASE NO. LC/H/880/22 AND 08 SEPTEMBER 2023

AUSTIN RAJABU	APPLICANT

And

J.H. BUTLER FARMS LTD.	RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant	: Mr R. Masomere, Legal Practitioner

For the Respondent	: Miss H. Madzongwe – Legal Practitioner

CHIVIZHE, J:

The matter has been placed before me as an application for quantification of damages in lieu of reinstatement. The application is opposed.

BACKGROUND FACTS

The material background facts to the matter are as follows; the applicant is a former employee of the respondent. He was employed as a general hand in the Tobacco Section. On the 17th March 2022 the respondent levelled a charge of misconduct against the Applicant. The Applicant was subsequently suspended from employment ‘until further notice’ on the 24th of March, 2022. He was later charged with committing ‘any conduct inconsistent with the fulfilment of the express or implied terms of his employment contract’. On the 7th of April 2022 he appeared before a Disciplinary Authority to answer to the charge. The hearing was conducted and concluded

on the 8th of April, 2022. On 28th of April 2022 he was served with a letter confirming his conviction on the charge and a penalty of dismissal was imposed with effect from that date.

Being aggrieved with the manner/outcome of proceedings the Applicant on 2nd June, 2022 filed an appeal and an application for review before this court. The respondent having been properly served with the application failed to oppose the application resulting in the court granting the application on an unopposed basis. The default order was granted on 8th July, 2022 and issued on 15th July, 2022.

Subsequent to the default order granted in his favour the applicant approached this court with an application for quantification of damages in lieu of reinstatement.

APPLICATION

The application was filed on 23rd September, 2022. The application was opposed by the respondent.

The respondent through the Opposing Affidavit of Nicholas Butler avers that after applicant was dismissed on 28th of April, 2022 the applicant had filed an application for review and an appeal against the Disciplinary Committee findings. The respondent, upon receipt of the process referred the matter to counsel for legal advice. Upon being advised that the disciplinary process undertaken had indeed been irregular the respondent proceeded to reinstate the applicant with full salary and benefits on 14th of June, 2022. The disciplinary proceedings and the outcome of 28th April were accordingly set aside. The Applicant had been accordingly advised. Respondent contends that the order granted by this court under reference LC/H/ORD/482/2022 had been granted after Applicant had been advised of the new development.

The Applicant was reinstated before the order came out. The respondent on 21st June, 2022 levelled fresh and different charges against the applicant. The applicant having been served with notification of these ignored the correspondence. Neither did he respond to the invitation to attend a disciplinary hearing on 18th July, 2022. On 21st July 2022 the applicant however appeared for the disciplinary hearing with his representative but walked out of the hearing after the preliminary points they raised were dismissed. On the basis of authorities such as Moyo vs. Rural Electrical Agency SC 4/14; Masvikeni vs. National Blood Service Zimbabwe SC 28/19, he therefore denied himself the right to challenge the proceedings. The disciplinary proceedings had however

proceeded in his absence resulting in his conviction on the fresh charges as levelled. A penalty of dismissal was consequently imposed with immediate effect.

The respondent’s submission is that the application for quantification is therefore misplaced in view of the applicant’s status of being a dismissed employee, the dismissal verdict so imposed also remains extant. The respondent dispute that the second disciplinary proceedings convened were irregular in view of the pending appeal/application for review before the Labour Court at the time. The submission is made that it had the right as the employer to revoke the initial proceedings and pursue fresh proceedings. With regards the order issued by this court on 15th July, 2022 respondent contends that the effect of the order was to set aside proceedings that had already been set aside by the employer. The order did not have the effect to set aside the second disciplinary proceedings convened on 21st June, 2022. Respondent also contends that it had no duty to seek consent of the applicant to withdraw the Labour Court matter pending before convening the second disciplinary process.

With regards the application for quantification the respondent contends that the amount claimed of 24 months’ salary is not justified at all. The claim for punitive damages also has no basis at law. The salary rate of USD$65.00 has also not been justified by the applicant. The respondent urges the court to take notice that the applicant has already been paid the sum of ZWL

$242 218.00 as a separation package following his lawful dismissal from employment. This figure ought to be considered in the event that applicant’s application finds favour with the court. On this basis the respondent’s prayer is for dismissal of the application with costs.

PARTIES SUBMISSIONS

Both parties appeared for the hearing and made submissions based on their Heads of Arguments as filed with the court. Mr Masomere, for the applicant, also made two applications, firstly for the expunging from the record of two documents incorrectly attached to the applicant’s papers. The second application was for the introduction into the record of an authority not referred to in Applicant’s heads of argument (i.e. Omnia Nutrology (Pvt) Ltd v Samson Majolo SC 357/16). Both applications not being opposed by respondent were duly granted.

Ms Madzongwe, for the respondent, also made an application for expunging from the record of the applicant’s Answering Affidavit which document had been filed in breach of Rule

26(6) of the Labour Court Rules, 2017. The application was also granted as unopposed and the Answering Affidavit was duly struck out of the record.

On the merits, Mr Masomere, for Applicant, submitted that he was abiding with the Heads of Arguments as filed. He emphasised that the court should find that the second disciplinary proceedings having been convened whilst there was still pending before the Labour Court an appeal/application for review, were irregular proceedings. He relied on the authority of Omnia Nutrology (Pvt) Ltd and Samson Manjolo SC 357/16 and the precursor Labour Court judgment in Omnia Nutrology (Pvt) Ltd and Samson Manjolo reference LC/H/44/2015.

Mr Masomera also made reference to section 124(1) of the Labour Act [Cap 28:01] which section prohibits the institution of multiple proceedings relating to the same parties. He argued that the respondent, being aware of the proceedings pending before the Labour Court, was precluded from convening fresh disciplinary proceedings at law. Respondent ought to have sought first the withdrawal of those proceedings. On this basis it was applicant’s position that the second disciplinary proceedings amounted to a nullity at law (with reference to McFoy v United Africa Company (Pvt) Ltd. 1961 (3) ALLER 1169). As a nullity those proceedings stood to be set aside by this court.

Mr Masomera, also disputed the respondent’s contention that the second proceedings were convened in order to correct the procedural irregularities in the first disciplinary hearing. He submitted that a perusal of the record would clearly show the charges were different from the initial charges. This only served to confirm the applicant’s view that respondent was determined to dismiss him from employment. On the application for quantification his view was that the applicant had properly justified his claims. Being an uneducated and unsophisticated 44 year old his chances of obtaining alternative employment were very slim. He referred the court to a Labour Court judgment in Bernard Ncube vs Delta Beverages LC/MT/81/07 where the court emphasised the need for the court to take into account all factors such as employee’s age, health, qualification in arriving at an appropriate order for damages. With regards evidence of job applications made Mr Masomera submitted that the nature of the industry Applicant’s operates in, being in the agricultural sector, precludes the applicant from filing proper written applications. The pattern is that one just shows up at a farm and may/may not be taken. It is against this background that the applicant was unable to prove any previous attempts taken to find alternative employment.

Mr Masomera also submitted that the case also called for an award of punitive damages as provided for under Section 89(2) (c) of the Labour Act [Cap 28:01]. In this particular case respondent conduct in seeking to circumvent the law by convening an unlawful second disciplinary process was clearly unwarranted. The court was urged to show its displeasure by imposing punitive damages. The applicant’s prayer was for the claims to be granted as sought.

Miss Madzongwe, for the respondent, submitted that the application for quantification of damages was misplaced. Firstly, because as submitted by respondent, applicant had been lawfully dismissed following a second disciplinary process. After applicant’s initial dismissal (on 28th April, 2022) the respondent having sought and obtained legal advice then reinstated applicant on 14 June 2022. The Labour Court order issued on 15th June, 2022 had come out after the respondent had already regularised the irregular dismissal arising from the first proceedings and reinstated the applicant with full salary and benefits. The respondent however had proceeded to level fresh charges of misconduct, as it was bound to as an employer, the applicant having committed acts of misconduct. The applicant had been found guilty of those new charges. The applicant was notified of the disciplinary proceedings and opted to walk out of the proceedings with his representative. It was respondent position that the applicant having been lawfully dismissed the application for quantification was improperly placed before the Labour Court. The relief sought was also not available in view of the fact that applicant had already been paid a severance package. Section 89 of the Labour Act [Cap 28:01] also does not envisage a scenario where an employee is awarded damages in lieu of reinstatement and punitive damages as separate claims. The applicant could only seek damages in lieu of reinstatement which would be punitive in effect.

Miss Madzongwe also challenged the rate of salary utilised by the applicant as well as the 24 months’ salary. Mr Masomera in reply made reference to the minimum wages as provided under the NEC for the Agriculture Industry (copy annexed to applicant’s papers) as justifying the claim. The applicant grade was also evident in the papers filed of record Ms Madzongwe made no further submissions on the point.

WHETHER THE CURRENT PROCEEDINGS ARE PROPERLY BEFORE THE COURT

The respondent has raised the issue of the present applicant being improperly before this court in view of the fact that Applicant was reinstated into employment and thereafter was

dismissed following lawful second disciplinary proceedings convened by the employer. The respondent’s position is that applicant cannot seek quantification in such circumstances. The applicant does not agree. He contends that there is an extant order granted by this court which order granted him judgment in respondent’s default. He is challenging the second disciplinary proceeding as a nullity due to the fact that the respondent proceeded well aware of the proceedings that were pending before this court. The applicant has also found support in Section 124(1) of the Labour Act [Cap 28:01].

In determining this point I have initially placed reliance on the provisions of Section 124(1)

of the Labour Act [Cap 28:01] which provision reads as follows;

124 Protection against multiple proceedings

Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related

matter, without first advising the authority, court or tribunal which is responsible for or

concerned with the second mentioned proceedings of the fact of the earlier proceedings.

It is clear that the provisions in Section 124(1) are clearly meant to curtail multiple proceedings. In this case the respondent was clearly precluded from proceeding to conduct separate fresh disciplinary proceedings. The respondent was aware of the proceedings before this court. Respondent did not appear for the hearing before this court despite notification resulting in a default judgment. The respondent did not seek rescission of the default judgment neither did it seek withdrawal of the matter. It is very clear that the respondent has conducted itself with disrespect for this court and its processes. This cannot be countenanced. The court has to necessarily protect its processes. The finding therefore is that the order issued by this court on 8th of July 2022 remains extant. The disciplinary proceedings that were conducted by respondent after the issuance of the order of this court are consequently a nullity.

The present application for quantification filed in pursuance to this court order under reference LC/H/ORD/482/2022 was therefore properly filed before this court.

THE CLAIM FOR DAMAGES

The applicant is claiming the following;

Damages in lieu of reinstatement 24 months’ salary

Punitive damages 12 months’ salary

Total 36 months’ salary

Rate of pay US$65.00 plus ZW$32 981.00

Total US$2 340.00 to be converted at the prevailing interbank and auction rate and ZWL$187 316.00.

The applicant in oral arguments justified each and every claim made. On the salary rate to be utilised, applicant’s position was the court had to place reliance on the new minimum wage for his grade ‘A’ i.e., USD $60 which salary rate was introduced through Statutory Instrument No. 175 of 2022 which came into operation on 15th of May 2022.

On the issue of damages in lieu of reinstatement it is a trite principle an employee unlawfully terminated, is not expected to sit around, he has to mitigate his loss (see Ambali vs Bata Shoe Company 1999 (1) ZLR 417(S) and Gauntlet Security Services Private Limited vs Leonar1997 (1) ZLR 583(S). Applicant indicates he is unable to produce any application letters given the nature of the industry he only had to do a physical search for employment. With regards to the salary rate applicable the applicant submits it was the new minimum wage for a person in his grade A1. The salary is pegged at USD$ 65.00. Mrs Madzongwe for the respondent was unable to counter the submission with proof of salary that Applicant was earning at the time of termination. The salary rate of USD$60 as provided for in the relevant statute is therefore adopted. On the issue of punitive damages it is trite position that punitive damages are only paid where the employer is guilty of reprehensible conduct. Reference is made to Mvududu vs. ARDAC SC 416/14 It is also correct as stated by Respondent that punitive damages are awarded as a component of damages in lieu of reinstatement. In other words, punitive damages are not awarded separately.

I am satisfied after considering the submissions made by the parties and upon perusal of authorities as referred that the applicant is entitled to three months’ salary in damages. Given the nature of the industry applicant would have obtained alternative employment within that period. Applicant having also laid a sufficient basis for the award of punitive damages in this case the applicant is entitled to a further two months’ salary. This is in view of Respondent’s reprehensible conduct in choosing to ignore the court process to convene unlawful second disciplinary

proceedings. The court however notes that the applicant having already received an amount of ZWL$ 242 218.00 as severance package this amount has to be necessarily set off against the award.

In the result it is ordered as follows;

The Respondent is directed to pay to Applicant within 30 days of the date of this order as termination benefits;

USD$ 60 x 5 months in damages in lieu of reinstatement.

The amount shall be payable in ZWL on the basis of the prevailing rate of exchange on the date of payment.

The Respondent shall deduct from the amount awarded the amount of ZWL$ 242 218.00 which has already been tendered to Applicant as severance package.

There is no order as to costs.