Doreen Sagandira v Makoni Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/499/2016
HARARE, 11 JULY 2016
CASE NO.
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/499/2016

HARARE, 11 JULY 2016				CASE NO. LC/H/APP/394/2016

AND 19 AUGUST 2016

In the matter between:-

DOREEN SAGANDIRA				Applicant

And

MAKONI RURAL DISTRICT COUNCIL		Respondent

Before Honourable Mr. Justice L.M. Murasi

For Applicant					Ms. S. Nkomo (Legal Practitioner)

For Respondent					Mr. R.G. Wenyeve

(Legal Practitioner)

MURASI J.,

On 17 July 2016 this Court issued an Order pursuant to an application for quantification by the Applicant. The Respondent has requested for reasons for the order. It is my sincere hope that the request has been made in earnest as this matter has been pending finalisation for a very long time indeed.

It is apposite to give a brief history of the matter. Applicant was employed by the Respondent at its Rusape offices. Following allegations of absenteeism, the Applicant was transferred to Respondent’s offices at Inyati Mine. Following Applicant’s questioning such a transfer, she was dismissed after a hearing chaired by the Chief Executive Officer. The matter was referred to a labour officer and subsequently to arbitration. The arbitrator upheld the dismissal and the matter finally landed in the Labour Court which also dismissed the appeal. Applicant approached the Supreme Court and the superior court held that the Respondent had erred in dismissing the Applicant in the manner it did and ordered Applicant’s reinstatement without loss of salary and benefits. Applicant’s legal practitioners communicated with Respondent’s legal practitioners concerning the issue of reinstatement and they were told in no uncertain terms that Respondent was not going to reinstate the Applicant. This is the reason for the application for quantification.

At the commencement of the proceedings the Court informed Respondent’s legal practitioner that the point in limine he had taken was not legally sound and gave reasons therefor. Respondent had taken the issue that as the order had been by the Supreme Court, it was supposed to be that court which was supposed to hear the application for quantification. Mr. Wenyeve, in his submissions, had stated that the Labour Court could not usurp the powers of a superior court and thus did not have the jurisdiction to entertain the application. The Court made the decision for the following reasons. Firstly, the order of the Supreme Court became an order of the Labour Court. The Order is framed as follows:

“1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted:-……”

The Supreme Court amended the order of the Labour Court and it thus became an order of this Court. Secondly, the provisions of the Supreme Court Act in section 24 thereof are clear that the decision of the Supreme Court on appeal shall be recorded in the court of first instance and thus becomes a judgment of that court. Thirdly, the Labour Act clearly provides that the Labour Court has such jurisdiction over matters of labour and shall exercise such jurisdiction in the first instance to hear and determine applications or appeals. Lastly but not least of all, Respondent’s legal practitioner was intent on persuading the Court to agree that the three Supreme Court judges who  determined the matter should sit and hear evidence in quantification proceedings. I do not believe this was a serious contestation on his part. Precedent has shown that the superior court has oftentimes referred to this Court issues to do with quantification as this Court is regarded as a court of equity.

The Court further indicated to both parties that the application reflected that no damages for loss of employment were being claimed as what applicant only sought was ‘backpay’ for the period stated in the court order. The Court made this observation on the basis of precedent. In KUDA MADYARA vs GLOBE & PHOENIX INDUSTRIES (PRIVATE) LIMITED t/a RAN MINE S 63/02, SANDURA JA (as he then was) had this to say at page 5 of the cyclostyled judgment:

“In my view, where the order of reinstatement indicates that retrospectivity was intended, the damages to be paid in lieu of reinstatement must include back-pay and benefits.

Those comments apply to the present case with equal force. As far as back-pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect. In my view, both of them are entitled to back-pay and benefits. The only difference between them is that one gets his job back whilst the other is paid damages for the premature termination of his employment contract.”

The order of GARWE JA in casu is quite clear that the Applicant was to be reinstated to her former position without loss of salary and benefits. I have also noted that Applicant has not included in the application the period between the order of the Supreme Court and the date when Respondent communicated the decision that it was not going to reinstate the Applicant. The judgment by the Supreme Court is dated 16 September 2014 and the letter from Respondent’s legal practitioners expressing Respondent’s position is dated 21 January 2015 and Applicant has not included this period which she was entitled to do. I also note that Respondent’s legal practitioners made an offer at settling the matter in a letter dated 14 January 2016. I however was dismayed at the wrong interpretation carried in that letter. The first proposal reads as follows:

“1. Our client proposes to pay two weeks for every year served from January 2009 to September 2014 when the decision was made. (this is now the law)

Clearly this is a misunderstanding of the amendment to the Labour Act. Firstly, the amendment came into force in 2015 and its retrospectivity did not affect labour matters decided before July 17, 2015. Secondly, this was not a retrenchment package but a claim for salaries and benefits for the period under consideration. However, I digress.

The Court thereafter informed the parties to discuss these issues and come back to Court. After discussions the parties returned to Court and Ms. Nkomo made the following submissions:

“We have agreed with Respondents in terms of calculations for salaries for the period February 2005 to February 2009- to employ the salary that was paid by respondent in February 2009 when the USD came into circulation. This position was as expressed in Applicant’s HOA- Calculation that was adopted in Fleximail-“

Mr. Wenyewe

“I confirm the position.”

The only area of dispute between the parties had thus been resolved by the parties themselves. The Respondent had earlier stated that in its documents filed of record and particularly the letter to above that the contentious era was between February 2005 and February 2009 as there was no formula. The Court had asked the two practitioners to discuss the issue. The above was a result of discussion between the two.

Ms. Nkomo thereafter proceeded to make the calculations due to her client. These calculations were under the following headings:

1. Outstanding Salaries

2.  Housing Allowances

3.  Transport Allowances

4.  Food hamper

5. Leave days

6.  Notice pay

The Court inquired of Ms. Nkomo whether item number 4 relating to the food hamper was a contractual benefit. She replied in the negative and stated that she was accordingly withdrawing it. Using the schedule submitted, Ms. Nkomo came up with the figure of a total of $62 737-70. Mr. Wenyewe’s response was as follows:

It appears the amount was paid as at 2009 as transport and housing allowance had not changed otherwise I agree with the calculations.”

The record further shows the following:

“Ms. Nkomo:		That is all.

Mr. Wenyewe:	No further submissions.”

The record therefore shows that as the Applicant had not made an application for damages for loss of employment, the Court could not mero motu proceed to deal that. Therefore no evidence was required from the Applicant. Applicant has simply restricted her application to the order of the Supreme Court which had ordered her reinstatement without loss of salary and benefits. As already stated elsewhere in the judgement, precedent shows that Applicant was indeed entitled to receive the unpaid salaries and benefits. The parties were ad idem as regards the formula to be used in the calculations and the final figure arrived at. The Court thereafter made the following Order:

1. The application for quantification be and is hereby allowed.

2. Respondent to pay to Applicant arrear salaries and allowances from the period from February 2005 to September 2014 in the sum of $62 737-70.

3. The amount stated in paragraph 2 of this order shall be paid through Applicant’s legal practitioners.

4. Each party to meet its own costs.

Sinyoro and Partners			Applicant’s legal practitioners

Warara & Associates			Respondent’s legal practitioners