Cephas Mabayanzira v Staysun Investments (Pvt) Ltd t/a Ligi Products

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 JANUARY, 2024 & 13 FEBRUARY 2024
JUDGMENT NO LC/H/49/2024
CASE NO LC/H/502/23
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 JANUARY, 2024

& 13 FEBRUARY 2024

JUDGMENT NO LC/H/49/2024 CASE NO LC/H/502/23

CEPHAS MABAYANZIRA	APPELLANT

STAYSUN INVESTMENTS (PVT) LTD t/a LIGI PRODUCTS	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	Mr N.F Kambarami, Attorney

For Respondent	Mr N. Mugandiwa, Attorney

MUSARIRI, J:

On the 31st May 2023 at Harare F Mutambirwa in her capacity as a Designated Agent made a determination. She ordered Respondent (employer) to pay Appellant, (employee) an amount of US$2, 563, 56 in respect of notice pay, service pay and leave pay. Appellant then appealed against the determination to this Court in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were six-fold as follows;

“1. The designated agent erred and misdirected herself by concluding that I had been dismissed on notice yet no evidence to this effect was led during the proceedings, which misdirection was so gross and bad at law.

The designated agent erred and misdirected herself by omitting to determine whether or not there was an unfair dismissal yet this matter had been put into the agent’s purview by the applicant. Such misdirection amounted to a misdirection on a point of law.

The designated agent erred and misdirected herself on a point of law by failing to order reinstatement as a principal remedy for unlawful dismissal.

The designated agent erred and misdirected herself on a point of law by proceeding to calculate terminal benefits in terms of Section 12(4B) of the Labour Act when the employee was not dismissed on notice but was unfairly dismissed.

The designated agent erred and misdirected herself on a point of law by invoking the no work no pay principle against an employee who had been unfairly dismissed.

The designated agent erred and misdirected herself on a point of law by arrogating the duty to supply employment records on overtime to the employee.”

These grounds of appeal raise basically 2(two) issues namely;

Whether the termination of appellant’s employment by respondent was fair or lawful; and/or

Whether the appellant is owed outstanding terminal benefits by respondent.

1st Issue

In her determination, the Designated Agent (DA) set out the issue before her as;

“Alleged unlawful termination of employment contract and non-payment of terminal benefits.”

Her ruling reads,

“It is hereby determined that the respondent pays the claimant a total of US$2,563.56. The amount can be paid in USD or RTGS at the prevailing interbank exchange rate on the date of payment. The breakdown of the amount is as follows;

Cash in lieu of notice pay, US $878.91 Service pay, US$1,318.37

Cash in lieu of leave US$366.28

The claims of unpaid overtime and wages for the period January 2021 to January 2023 are without merit and therefore dismissed. The determination is to be complied within 30 days from the date of receiving it.”

The ruling appears to skirt the issue of the lawfulness of the termination. However a perusal of the DA’s “Analysis of Submission” noted that

“The parties are amenable that the claimant should be paid three months cash in lieu of notice and service pay as compensation for the unlawful termination. Payment of notice is in line with Section 12(14)(a) (17) of the Labour Act. The respondent submitted that it will settle the amount using the prescribed NEC current rates. The claimant was a security guard, grade 6 and the current wage is US$292.97. It therefore follows that he is entitled to $878.91 as cash in lieu of notice.

Section 12(4b) of the Act stipulates that:

Where an employee is given notice of termination in terms of Subsection (4a) and such employee is employed under a contract without limit of time, the provisions of Section 12c shall apply with regard to compensation of loss of employment.

Section 12c (2) prescribes the minimum service pay of not less than one month’s salary or wages for every two years of service as an employee or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service shall be paid by the employer as compensation for loss of employment….

The claimant having worked for 9 years is therefore entitled to be paid US$1,318.37 as service pay.”

The underlining is for emphasis.

The analysis excerpted above clearly shows that the DA affirmed or ruled that the termination of employment was unlawful.

2nd Issue

It is trite law that the primary remedy for unlawful termination of employment is reinstatement. Where reinstatement is untenable damages in lieu of reinstatement become payable. The DA did not award the primary remedies. In oral argument before this Court the attorneys for the both parties agreed that this is a matter where remittal of the case might be necessary. However considering that Appellant’s employment was terminated over 3(three) years ago on 28 December 2020 it is inexpedient to remit to another tribunal rather than settle the matter herewith.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The determination dated 31st May 2023 by F. Mutambirwa N.O. is set aside; and

3(a). Respondent shall reinstate Appellant’s employment without loss of salary and benefits, or

3(b). If reinstatement is untenable Respondent shall pay Appellant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this Court.

G. MUSARIRI J-U-D-G-E