Charles Mukwaiwa v Telecel Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/264/25
HARARE, 18 JULY, 2025 AND
28 JULY 2025
CASE NO. LC/H/462/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/264/25 HARARE, 18 JULY, 2025 AND

28 JULY 2025	CASE NO.	LC/H/462/25

CHARLES MUKWAIWA	APPELLANT

TELECEL ZIMBABWE (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- C. Mukwaiwa, Appellant

For Respondent	- W. Chirongoma, Respondent

MUSARIRI, J:

On 29th April 2025 at Harare, Designated Agent P Mgazi issued a determination which dismissed appellant’s claim against respondent for gratuity and notice pay. Appellant then appealed the determination to this Court in terms of Section 92D of the Labour Act Chapter 28;01 hereafter called the Act. Respondent opposed the appeal.

The grounds of appeal were duet thus;

“1. The Designated Agent erred in concluding that Appellant’s matter had prescribed yet the Appellant’s claim was properly before the Tribunal.

2. The Designated Agent erred by concluding that Section 12(4a) and (4b) as read with Section 12C of the Labour Act (Chapter 28:01), as it then was, did not apply to the Appellant yet compensation accrued notwithstanding the form of termination of employment.”

Respondent’s opposing affidavit countered that; “Ad Ground of Appeal 1

2. The Designated Agent made no error. The Appellant lodged his claim with the National Employment Council on September 24, 2019, following his dismissal from employment on September 6, 2019. The two-year statutory period for initiating a claim before the Designated Officer had already elapsed. After noting the claim for compensation for loss of employment, the Appellant took no further action to have the matter heard until he subsequently filed an application to compel the Designated Agent to proceed with his claim. From 2021 onwards the Appellant failed to take any steps to ensure the conclusion of his matter. He presented no evidence demonstrating efforts to successfully prosecute the claim. Instead, he pursued an appeal against unfair dismissal, which was contested up to the Supreme Court under case number SC 440/24 see record of proceedings attached hereto marked B. Given that the claim had prescribed, the Designated Agent’s findings on this issue cannot be challenged.

Ad Ground of Appeal 2

3. This ground is denied. The Designated Agent did not err in making a finding concerning the claim for compensation for loss of employment. The Appellant’s employment was terminated for cause, and as such, his claim falls to be addressed within the framework of Section 13 of the Labour Act (Chapter 28:01) which governs terminal benefits upon employment termination. Consequently, the Appellant cannot validly make a claim under Section 12(4) of the Labour Act.”

The grounds of appeal and the response thereto raise 2 (two) issues which shall be addressed ad seriatim.

Whether appellant’s claims for gratuity and notice pay had prescribed:

In his determination the Designated Agent (DA) opined that,

“6.4 At this stage it has to be established when the cause of action first arose. When the Claimant initially filed his complaint with the NEC? It is clear on the letter from his lawyer to the Chief Designated Agent dated 19 September 2019 that it was received by the NEC on 23 September 2019 and in the same letter there is no date of termination… It is crucial to note that in most of the submissions filed the termination date is given as with effect from 06 September 2017. That being the case the cause of action is already known that it is 06 September 2017.

6.9 What the Claimant might not have known is that he was not supposed to be kept waiting by the Respondent without lodging his claim with the next port of call timeously when internal engagements had proved not to yield positive results or were taking too long to conclude. It is correct that the claimant after lodging his claim with the NEC he never stopped following up on his matter as such the matter cannot be said that he failed to prosecute his claim to finality as he was making frantic efforts to have his matter heard. The issue is that he brought his claim to the NEC when the prescribed two years had lapsed.”

The DA’s conclusion is consistent with Section 94 of the Act which provides that;

“(1) Subject to subsection (2) no labour officer shall entertain any dispute or unfair labor practice unless-

it is referred to him; or

has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.

Appellant was dismissed from employment by Respondent on 6 September 2017. His attorney referred his claims for gratuity and notice-pay to the NEC on 23 September 2019 which was more that the prescribed two year limit in the Act.

Appellant sought to argue that prescription started to run on 5th March 2018 when respondent failed to comply with his demand for payment. The argument does not hold as it is not grounded in the applicable statutory provision quoted above. The provision does not make any exception related to demands or responses thereto. Cadit quaestio.

Whether the minimum retrenchment is payable by respondent to appellant in terms of Sections 12C and 12(4a) of the Act:

The Court’s conclusion apropos the first issue above, renders the second issue redundant.

Conclusion

The main issue in casu resolves against appellant. Therefore, the appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

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