Kadoma Textiles (Private) Limited v Lovemore Kapungu and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/51/25
HARARE, 12 SEPTEMBER 2024 & 19
FEBRUARY 2025
CASE NO LC/H/293/24
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 12 SEPTEMBER 2024 & 19

JUDGMENT NO LC/H/51/25

CASE NO LC/H/293/24

FEBRUARY 2025

In the matter between:-

APPELLANT

KADOMA TEXTILES (PRIVATE) LIMITED

And	RESPONDENTS

LOVEMORE KAPUNGU AND OTHERS Before the Honourable Kudya J

For the Appellant

For the Respondents

B. Magogo (Legal Practitioners)

K. Gama (Legal Practitioners)

KUDYA, J:

This is an appeal and cross appeal of the determination which was issued by the Designated Agent in a labour dispute between the appellant employer and the respondent employees.

In the appeal the employer raised issues which can be summarised as such:

1) Designated Agent erred by formulating issues for determination and proceeding to determine such yet both employer and employees did not place before him the issue of a minimum retrenchment package and neither party made submissions on that.

2) Designated Agent erred by awarding a retrenchment package not sought by either party and whose calculation was independent of the parties’ submissions and contributions.

3) Designated Agent erred to award a minimum retrenchment package to the employees after dismissing their claim as motivated by them and as contained in their pleadings before him. The employees claimed that they were still in the employer’s employment and that they were entitled to salaries and benefits calculated from 4 September 2018. Post dismissal of the claim the matter ended.

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4) Designated Agent erred by not pronouncing on the fate of the appeal by the employees of July 2018 against their dismissal from employment to the NEC appeals board.

In the result, the employer prayed that the appeal succeeds with costs on a legal practitioner scale and that the judgement awarding the employees a minimum retrenchment package be set aside, consequently the employee’s claims be dismissed with costs jointly and severally, the one paying the other to be absolved.

In response to the main appeal, the employees stated that the appeal was bad at law so it had to be struck off with costs. The main challenge was that the challenge was a challenge of the process used by the Designated Agent which challenge could be done through a review and not an appeal. They also maintained that the grounds of appeal were not precise and concise. Finally they claimed that incompetent relief had been sought by the employer in this appeal. In that view complaints raised by the employee do not justify a dismissal of their claims but rather a remittal of the matter for regular process to be undertaken.

On the merits they maintained that: -

1. The Designated Agent did not err. He had been asked to decide if summary termination of the employees’ jobs was lawful. He concluded that such termination could only be lawful if a retrenchment package was paid. Since termination had been done before a package was paid so the Designated Agent awarded the employees the package per its (employer’s) offer dated 17 September 2018). That is what the Designated Agent awarded so the appeal is mala fide.

2. Conciliation is distinct from litigation. Whether a remedy is sought or not is immaterial. The employee is not required to file any document or to seek specific relief at conciliation. There is no rule of law which binds a conciliator served with a dispute. The claim is therefore invalid.

3. The employees’ claim was not dismissed. The relief sought by the employees was varied by the Designated Agent. Even courts of law have power to vary the relief sought and grant relief which is consistent with the facts and the law.

4. This ground is vague and imprecise albeit the fate of the appeal to the Appeals Board was pronounced upon by the Appeals Board. The Designated Agent could not pronounce the fate of an appeal which was not before him. The complaint is frivolous and vexatious.

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In the result the employees prayed that the appeal be dismissed with costs on the legal practitioner scale.

After filing their response to the appeal as stated above the employees also filed their cross appeal in the following terms;-

1. Arbitrator erred by not finding that summary termination of the employees’ employment by the employer on 17 September 2018 was a nullity and in not ordering the employer to pay the employees back pay up to the date of his ruling.

2. Designated Agent erred by not finding that the employees were still in the employer’s employment at the time of the summary termination of their employment and at the time of his ruling and in not ordering the employer too pay them their current salaries until their employment had been lawfully terminated.

In the result the employees prayed in the cross appeal that the cross appeal be allowed with costs, that the Designated Agent’s decision be set aside and be replaced with the following

a) The summary termination of the employees employment by the employer on 17 September 2018 was a nullity as it was contrary to law.

b) The respondents are still in the employer’s employment. c) Employer shall pay the employees back pay as follows;-(i)	1st Respondent US 106 456,48

(ii)        2nd Respondent - US 79 932,56 (iii)      3RD Respondent – US 61 062,95 (iv)       4th Respondent US 131 360,11

d) Employer shall pay employees their salaries and benefits every month or fortnight until it lawfully terminates their employment.

In response to the cross appeal the employer stated the following:-

Cross appeal is based on a summary termination of 17 September 2018. Such is of no moment since the employment contracts came to an end in May 2018 in terms of the summary dismissal issued by the employer. The dismissals of May 2018 are extant and have not been set aside by NEC Appeals Board. Employment between the parties came to an end on 11 May 2018. There was therefore no error by the Designated Agent in not ordering backpay in respect of the employees’ contracts which came to an end on 11 May 2018 upon summary dismissals. Respondents are not the employees of the appellant so there was no error by the Designated Agent in not finding that they are still employees of the appellant. The submissions made by

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the employer in the proceedings before the Designated Agent are incorporated to support this response to the notice of cross appeal. It lacks merit and should be dismissed with costs on a higher scale because the employees accept that their employment was summarily terminated in May 2018. They also accept that they sought to appeal against their summary dismissal. They also confirm that the decision by the Appeals Board did not set aside their dismissal and it did not order their reinstatement. That being the case, their insistence on being employees of the appellant is unfounded, of no basis and ultimately an abuse of court process. Appellant employer has been put out of pocket as a result of respondent employees’ conduct. It is just and proper that the court pronounces its disapproval of the conduct of the respondent employees and indemnify the appellant employer by an order of costs on the punitive scale. In the result the employer prayed that the cross appeal be dismissed with punitive costs.

On the date when the appeal and the cross appeal were heard the court indicated that it would rule on the points in limine raised, the main appeal and the cross appeal all at once. It is in the spirit of that pronouncement that this judgement is written.

Points in Limine

The employees took 3 points as already stated at the outset of this judgement. These are basically that the appeal grounds are invalid since they seek to challenge the process leading to the decision which is an issue for review and not appeal. Secondly the appeal grounds are not precise and concise. Thirdly the relief sought is incompetent in that if indeed the Designated Agent used wrong procedure the remedy lies in a remittal of the matter and not a dismissal of the employees claims.

Appeal/Review debate

It is settled that a challenge of process shall be done through a review as opposed to a challenge of the substance of a matter which shall be done through an appeal. See Rule 19 and 20 Labour Court Rules respectively. A reading of grounds 1 and 3 of the main appeal show already that the employer is aggrieved by the process which was adopted by the Designated Agent in that he ended up deciding the question of retrenchment which was not before him. It is also clear that even though the grounds are laid out as being 3 they are essentially a single ground challenging the fact that the Designated Agent went outside the T.O.Rs before him. It is settled that when a Designated Agent exceeds his powers his decision has to be vacated. See Mapondera v Freda Rebecca Gold Mine Holdings Limited SC81/22.

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Being that as it may, before such a decision can be impeached or vacated its impeachment ought to be done properly within the confines of the law of review. In the case at hand such was not done so the point in limine challenge on grounds 1 and 3 about the review appeal debate is well founded. The point should therefore succeed.

Imprecise grounds

It is settled that grounds have to be clear and concise. See Kunonga V CPCA SC25/17. A reading of the appeal grounds shows clearly that these are a single ground severed into 3. That can on no account be adjudged concise and precise. The 2nd point in limine being merited it be and herby succeeds.

Relief

It is clear from the conclusion arrived at in point in limine 1 that the grounds are review grounds. On that account attendant relief on them is a remittal which however is not available in appeal proceedings. See Dalny Mine v Band 1999(1) ZLR220.It is clear that all grounds set out in the main appeal are faulty for the reasons stated above. It follows therefore that there is no proper main appeal before the court See Mcfoy vs United Africa Company 1961 ALL ER1169 (PC). The main appeal being bad at law for already stated reasons be and is hereby struck off.

Main Appeal

Having concluded that the main appeal is not properly before the court it becomes an exercise in futility to decide the appeal grounds which have been struck off. The main appeal in its entirety being bad at law be and is hereby struck off.

Cross Appeal

The employer correctly observed in the courts view that the cross appeal is based on a decision which was not before the Designated Agent. It is clear from the Designated Agent’s order that he was dealing with the job losses as pronounced in the May 2018 dismissal. He thus cannot be accused of having failed to determine an issue which was not before him. See Chironda v Swift 1996(1) ZLR 206. There is thus no basis at all for this court to engage in detail with the cross appeal for the above reasons. The cross appeal is not merited so it should accordingly fail.

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COSTS

Both parties prayed for punitive costs. These are reserved for exceptional cases. See Mahembe v Matambo HCB 322/02. In the case at hand the employer is at fault for bringing up review issues in an appeal. The employees are equally at fault for bringing up issues that were not before the Designated Agent in their cross appeal. It therefore means either party has occasioned loss on its own part so it is just and equitable that each party bears be made to bear their own costs.

IT IS ORDERED THAT

1. Points in limine vis fact that the main appeal is bad at law being well founded they be and hereby succeed.

2. The main appeal be and is hereby struck off the roll as it is premised on irregular appeal grounds.

3. The cross appeal be and is hereby dismissed for lack of merit. 4. Each party bears own costs.

Samukange, Hungwe Attorneys

Gama and Partners

Appellant’s Legal Practitioners

Respondents’ Legal Practitioners

7 LC/H/2025 LC/H/