Elliot Mudimu v Art Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/302/25
CASE NO LC/H/96/24
HELD AT HARARE, 8th MAY 2024 AND
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/302/25

CASE NO LC/H/96/24

HELD AT HARARE, 8th MAY 2024 AND

15 JULY 2024

In the matter between:-

ELLIOT MUDIMU:	APPLICANT

And

ART CORPORATION LIMITED:	RESPONDENT

BEFORE THE HONOURABLE KACHAMBWA J

For the Applicant:	L.T Kazembe, Legal Practitioner

For the Respondent:	T Nyamayaro, Legal Practitioner

KACHAMBWA, J:

THE APPEAL

Take note that the appellant hereby appeals against the determination dated the 10th of July 2024.

FACTUAL BACKGROUND

Appellant was employed by the respondent for a period of 33 years as a machine setter on a contract without limit of time. He fell ill on or about May 2022 and he could not report for duty since the 27th of May 2022. Initially he was placed on a fully paid sick leave for three months and later on half pay for another three months. However, his condition did not improve.

Early December 2022, the parties discussed the state of affairs arising from the appellant’s exhaustion of his paid sick leave days. It was agreed that the company’s doctors had to assess the appellant’s health to determine his fitness to resume work. The appellant was assessed and the doctor reported that he “remained unwell and not fit to resume work.” The doctor recommended that he be retired immediately on medical grounds.

On 19 December 2022 the respondent wrote a termination of employment letter to the appellant following the doctor’s assessment. The appellant was referred to NSSA to claim for an invalidity grant and further assessments took place and confirmed the company doctor’s initial conclusion. He was paid his invalidity grant by NSSA and discharged from employment. The respondent paid the appellant all his dues accumulated including the cash in lieu of leave.

The appellant lodged a complaint of unlawful termination of contract. The appellant and respondent appeared before a Designated Agent to present their oral submissions. They were further invited to put their submissions in writing to enable a determination of the matter in terms of the Act. Upon hearing the submissions from both parties the Designated Agent dismissed the appellant’s claim in its entirety. The appellant was

aggrieved with the decision and filed an appeal to this court against the ruling.

GROUNDS FOR APPEAL

The grounds of appeal are as follows;

The Designated Agent erred in making an order in terms of section 93 of the Labour Act whereas section 93 applies to Labour officers not Designated Agents.

The Designated Agent erred in concluding that the appellant’s representative has no locus standi to represent the appellant whereas the representative acted in terms of section 29(4) of the Labour Act.

The Designated Agent erred in dismissing the appellant’s claim of unlawful termination of contract whereas nothing on record shows that the process was properly done.

Whereas appellant prays that;

The appeal be allowed with costs.

The determination by the Designated Agent be set aside.

That the appellant be reinstated to his former position without loss of salary and benefits because he is fit for work and if reinstatement is no longer possible, appellant be paid damages in lieu of reinstatement.

APPELLANT’S SUBMISSIONS

It was submitted that the roles of the Designated Agent in attempting to settle disputes was amply discussed in Zimoco v Memory Darikwa CCZ/6/20. The appellant submitted that his contract of employment was unlawfully terminated. He also submitted that the procedure of termination was not properly followed as the respondent did not give him notice, there was no room for negotiations offered by the respondent and the appellant was never given a chance to return to work. It was further submitted that the appellant did not waive his right to allege unlawful termination because no terminal benefits were paid to him. The appellant also stated that concerning the locus standi of his representatives, being a member of another workers union did not limit the appellant’s representation from anyone of his choice. The appellant stated that he had a right to enjoy his freedom of association as enshrined in section 58(1) of the Constitution of Zimbabwe.

RESPONSE TO THE APPEAL POINTS IN LIMINE

The respondent raised a point in limine that the appellant’s representative was not a lawful organization with proper registration and therefore had no legal standing to represent the appellant. The respondent submitted that despite requests for proof of registration of the federation, no certificate of registration was furnished or made available to the respondent’s attorneys and even the Designated Agent. In addition, it was submitted that even if the federation was registered, it still had no locus standi to represent the appellant in this matter because the appellant is a member of ZCPWU, to

which he made contributions during his working life and the union still existed.

MERITS

The respondent submitted that the first ground of appeal is without merit. In terms of section 93 of the Labour Act a Designated Agent has two options; to resolve the dispute or attempt to do so through conciliation. In casu he chose to resolve the dispute. Concerning the second ground of appeal, the respondent raised two points. The first being that the appellant’s representative failed to produce proof of registration before the Designated Agent. It is common cause that a valid trade union cannot exist outside proper registration under section 29.

Secondly, it was submitted that the appellant contributed and was a member of a trade union that was not a member or component of the federation that was representing him. The Labour Act is clear and specific in that the mandate of a trade union is connected to the constituency and people subscribing to it.

Lastly, the respondent submitted that the appellant’s need for a notice before the termination on medical grounds does not appear in the relevant provision but came by as a result of misreading the Supreme Court judgment on the Zimasco v Maynard Marikano SC 6/14. The remarks in Marikano supra which led to the introduction of the need for a notice were held to be obiter and were said not to represent the position of the law in Thandekile Zulu v ZB Bank SC 48/18.

ANALYSIS

WHETHER THE DESIGNATED AGENT ERRED IN MAKING AN ORDER IN TERMS OF SECTION 93 OF THE LABOUR ACT WHEREAS SECTION 93 APPLIES TO LABOUR OFFICERS NOT DESIGNATED AGENTS

Section 63 of the Labour Act states that;

(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a Labour officer

(3b) where a designated agent is authorised to redress any dispute or unfair labour practice in terms of subsection (3a), no Labour officer shall have jurisdiction in the matter.

(4) Any person who hinders or obstructs a designated agent of an employment council in the exercise of his powers or the performance of his duties in terms of this Act shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

It should be noted that the act in sub section (3a) clearly states that, “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a Labour officer.” This then means that this ground of appeal is without merit and should be dismissed.

WHETHER THE DESIGNATED AGENT ERRED IN CONCLUDING THAT THE APPELLANT’S REPRESENTATIVE HAS NO LOCUS STANDI TO REPRESENT THE APPELLANT WHEREAS THE REPRESENTATIVE ACTED IN TERMS OF SECTION 29(4) OF THE LABOUR ACT

Section 29 (4) says;

Subject to this Act, a registered trade union or federation of such unions shall be entitled—

to be assisted by a Labour officer or designated agent of the appropriate employment council in its dealings with employers; and

through its duly authorized representatives, to the right of access to employees conferred by subsection (2) of section seven; and

to be provided by  employers with the names and other relevant particulars, including particulars as to wages of all employees who are employed in the industry or undertaking for which the trade union or federation is registered, and who are members of the trade union or federation concerned; and (d) to make representations to a determining authority or the Labour Court; and …

15. It should be noted that while trade unions and federations are entitled to represent employees and appear before Designated Agents this right goes hand in glove with the responsibility to have the union registered first. The failure of the appellant’s representatives to produce their registration certificate to the respondent and Designated Agent renders their representation unlawful.

WHETHER THE DESIGNATED AGENT ERRED IN DISMISSING THE APPELLANT’S CLAIM OF UNLAWFUL TERMINATION OF CONTRACT WHEREAS NOTHING ON RECORD SHOWS THAT THE PROCESS WAS PROPERLY DONE

The issue that arises here is whether the appellant’s termination of contract

was lawful or not. Section 14 of the Labour Act provides :-

Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

During any one-year period of service of an employee an employer shall, at the request of the employee supported by a certificate signed by a registered medical practitioner, grant up to ninety days’ sick leave on full pay.

If, during any one-year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer shall, at the request of the employee supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days’ sick leave on half pay where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.

If, during any one-year period of service, the period or aggregate periods of sick leave exceed—

ninety days’ sick leave on full pay; or

subject to subsection (3), one hundred and eighty days’ sick leave on full

and half pay;

the employer may terminate the employment of the employee concerned.

An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay.

It is the appellant’s contention that section 14(4) does not give an employer an unregulated right to unilaterally dismiss an employee and that fair labour standards and the audi alteram partem rule still apply in casu. However, the respondent argued that the right to terminate is not subject to compliance with any particular procedures.

The appellant relied on the case of ZIMASCO v Marikano SC/06/14 wherein the court said ;

In determining this issue, the court a quo relied on the case of Mutukwa v National Diary Co-operative Ltd 1996 (1) ZLR (1) ZLR 348 which held, inter alia, that an employer was entitled to terminate the contract of employment on notice to the employee. The court was of the view that this principle was applicable to this case.

The reliance on the above case was clearly erroneous. I say so because s 14(b) of the then Labour Relations Act [Cap 28:01] provided that, unless more favourable conditions were provided in the contract, where an employee was unable for a period exceeding one month to fulfil the conditions of his  employment, the employer was entitled to terminate the contract on due notice, in which event the employee was to be entitled to all benefits due to him up to the date of such termination. The requirement to give notice was in terms of s 14(b) and was mandatory. It is common cause that s 14(b) was repealed by Act 17/2002 which substituted the section currently in existence and which is the subject of this appeal. The current provision makes no provision for the giving of notice. Considering the circumstances as a whole, I would agree with Mr De Bourbon that there was a clear legislative shift and change of policy regarding the termination of employment on the grounds of excessive sick leave. Section 14(4) has no express conditions attached to it except the requirement as to the amount of sick leave which an employee can take in any one year before the right to terminate can be exercised by an employer.

The court went on further to say that ;

However, since the decision to terminate an employment contract has far reaching consequences, one should assume that before such a decision is taken the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in s 14(4) and that for that reason it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.

In the present case it is apparent that there was correspondences between the parties in which the respondent asked the appellant to have a medical exam done to determine his fitness to return to work or continue working without pay as he had exhausted his 180 sick days leave. The appellant went for a medical checkup and the company doctor confirmed that he was not fit to return to work and even recommended that he goes on medical retirement. Furthermore, after receiving his terminal benefits the appellant was told to go to NSSA to apply for an invalidity grant which he did after being tested again to determine his fitness to return to work and NSSA confirmed the company doctor’s assessment. The agreement to have the appellant be examined to determine his fitness to resume work was enough notice as the appellant knew of the consequences of a negative result.

It is common cause that both parties agreed to have the appellant examined so as to avoid having him remain  as an employee of the respondent without pay and benefits as he had exhausted his 180 sick days with pay. If a notice was required this was adequate notice. He was not taken by surprise. He went through a process to determine his continued employment. He cannot be heard to cry foul.

DISPOSITION

After having looked at both parties’ arguments before this court, it is

ordered that;

1)  The appeal be and is hereby dismissed with costs.