Florence Mutambirwa v Rinstead Trading (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/815/2016
HARARE, 28 OCTOBER 2016 &
30 DECEMBER 2016
CASE NO LC/H/LRA/178/2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/815/2016

HARARE, 28 OCTOBER 2016 &				CASE NO LC/H/LRA/178/2016

30 DECEMBER 2016

In the matter between

FLORENCE MUTAMBIRWA					APPLICNT

Versus

RINDSTEAD TRADING (PVT) LTD				1ST RESPONDENT

And

JOHN NGOMAKALILA						2ND RESPONDENT

Before the Honourable Muzofa J

The Applicant in Person

No Appearance for the Respondents

MUZOFA J:

The applicant made a ruling in terms of section 93 5 ( c) of the Labour Act [Chapter 28:01] in the following terms:

“1.	The claim by the claimant for payment of service pay is hereby upheld in terms of section 12 c (2) of the Labour Act.

2.	The respondent should therefore pay a total of $1 574-16 to the claimant.

3.	The order should be complied with within thirty days from the date of receiving it.”

Pursuant to section 93 5 (a) and (b) of the Act the applicant has approached this court for confirmation of the said ruling.

The background to this case is not in dispute. The second respondent was employed by the first respondent. Following allegations of misconduct, the second respondent was charged, found liable and dismissed from employment.

The second respondent then referred a complaint of non-payment of terminal benefits to the National Employment Council for Catering Industry.

The applicant was seized with the matter. The applicant submitted that the second respondent’s claim was for service pay based on section 12 (c) 2 of the Act. The second respondent was on a salary of $268-00 and had worked for thirteen years. The applicant found that the second respondent was entitled to $1 742-00.

The first respondent appeared before the applicant. It opposed the claim on the basis that the second respondent had been paid all his dues and was therefore not entitled to any payments.

Section 12 (c) (2) relied upon by the applicant provides—

“Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called the “minimum retrenchment package”) of not less than one 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), not later than date when the notice of termination of employment takes effect.”

The ordinary meaning of that section is that an employee dismissed on account of misconduct is also entitled to a minimum retrenchment package. One wonders why the legislature put an employee dismissed on misconduct in the same position as one dismissed on notice or retrenchment.

However, that as it maybe, the law is very clear. The second respondent is entitled to the minimum package as provided in the Act.

There is no basis to impugn the applicant’s ruling.

Accordingly the following order is made:

The ruling by the Designated Agent Florence Mutambirwa be and is hereby confirmed.

The first respondent is ordered to pay $1 574-16 to the second respondent less statutory deductions.

The first respondent be and is hereby ordered to pay costs of suit in the sum of      $84-00.