Florence Mutambirwa N.O. v Meikles Hospitality (Pvt) Ltd & K. Zaranyika & 10 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/166/2020
HARARE, 09 JULY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/166/2020

HARARE, 09 JULY 2020		    		   CASE NO. LC/H/LRA/168/19

AND 17 JULY, 2020

Florence Mutambirwa	 N.O.				Applicant

Meikles Hospitality (Pvt) Ltd				1st Respondents

K. Zaranyika & 10 0thers 				2nd Respondents

Before Honourable G. Musariri, Judge

For Appellant			-	 Ms F. Mutambirwa, Applicant

For 1st Respondent		-	Mr K. Ncube, Attorney

For 2nd -12th Respondents	-	Mr B.T Mudhara, Attorney

MUSARIRI, J:

On the 10th of April 2019 at Harare Applicant, qua Designated Agent made a ruling.  She ordered 1st Respondent (employer) to pay 2nd to 12th Respondent (employees) a total sum of $21,065-45 in respect of their retrenchment package or terminal benefits.  The payments were due within thirty (30) days of the ruling.  Apparently the employer did not comply.  Applicant then applied to this Court in terms of section 93 (5a) of the Labour Act Chapter 28:01(hereafter called the Act) for the confirmation of her ruling.  The employer supported the application.  The employees opposed the application.

Applicant is a neutral actor in this matter.  The fight is between the employer and the employees.  As it were Applicant does not have a dog in the in the fight.  I will therefore concentrate on the stances taken and arguments made by those with dogs in the fight.

The employer’s position was summarized in its attorney’s Heads of Argument thus,

“10. In analysing whether the 2nd Respondents were entitled to payment of more than what is stipulated by the law, the Applicant gave careful consideration to the following:

[Unless better terms are agreed between the employee (sic) and the employees concerned or their representatives, a package (hereinafter called the minimum retrenchment package) of not less than one month salary or wages for every 2 years of service as an employee or the equivalent lesser proportion of 1 month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to Section 12 (4a) (a), (b) or (c) no later than (the) date when notice of termination takes effect]

11. Consequently, unless better terms had been agreed between 1st and 2nd Respondent and had been placed before Applicant, the Applicant was obliged to follow the provisions of Section 12C of the Act.

12. The Applicant correctly understood the provisions of the law and the prayer by the 2nd Respondent and reasoned thus:

[Since there are no better terms agreed between the employer and employees, the Claimants are entitled to payment of the prescribed minimum retrenchment package and other statutory terminal benefits.] “

On the other hand the employees’ attorney summarized their position in his Heads of Argument to this effect,

“1. It is submitted that the determination should not be confirmed since there was an agreement by the parties on how much was to be paid to each employee.”

3. It is respectfully submitted that better terms had been agreed upon by the parties and accordingly the determination cannot be confirmed since it did not take into account what the parties had agreed upon.

4. The agreement referred to in Annexure A of the 2nd Respondent’s affidavit obliged 1st Respondent to pay once 2nd to 12th Respondent signed.  It was not dependent on the 1st Respondent signing the agreement.  This is the reason why 1st Respondent deliberately avoided placing the signed agreement before this honourable court.

Various correspondences between the parties, via their attorneys, are filed of record.  I will highlight those that have a material bearing on the determination of this matter.  By letter dated the 26th March 2019 the employer wrote to the employees attaching an agreement for their signature.  The letter concluded by imploring that, “If your clients are in agreement with same, please let us have it signed so that the necessary payments are made to your clients.”  ([Underlining is for emphasis.]

On the 12th April 2019 the employees wrote to the employer attaching the signed agreement.  It therefore follows that upon dispatch of the signed agreement the parties were of a common mind.  Their next task/ expectation was payment in terms of the agreement.   However by letter dated the 3rd May 2019 the employer resiled from the agreement alleging that it had “erroneous’’ figures.

The said figures had been calculated and set by the employer in its initial letter enclosing the agreement.  if indeed they were erroneous figures that is a classic case of a unilateral error.  A party cannot use its unilateral error as a basis for repudiating an agreement.  The employees did not accept that there was an error in the figures.  They were entitled to take the position that the parties were bound by the figures in the signed agreement.  The employer sought to wriggle out of its predicament by stating that it (employer) did not sign the agreement.    Indeed no signed agreement was produced to the Applicant nor in this Court.  I consider that production of the agreement is not fatal to the employees’ cause.  This is because of the precise wording in the employer’s initial letter.  It is clearly stated therein that upon receipt of the signed agreement the employer  would pay the amounts set out.

Reading in between the lines it is apparent that the employer simply changed its mind.  Why?  Because on the 10th April 2019 Applicant made a determination which ordered payment of amounts lesser than those in the parties’ agreement.  That might also explain the employer’s reluctance to produce signed copies of the agreement.  No satisfactory explanation was tendered why the employer could not produce the agreement.  On the other hand the employees had returned all signed copies of the agreement to the employer.

In all the circumstances I consider that the employees’ case is stronger and better believable than the employer’s.  It is common cause that the outstanding payment is calculated thus,

Agreed total			48, 219-00

Paid				21, 065 -00

Balance			$27, 153-55

Accordingly Applicant’s ruling ought to be adjusted to reflect the correct balance due.

Wherefore it is ordered that,

The application for confirmation of ruling be and is hereby granted as amended herein,

The 1st Respondent shall pay the 2nd to 12th Respondents a total amount of $27, 153 -55; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E