Lameck Tarasana v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/207/2016
HARARE, 15 FEBRUARY 2016 &
8 APRIL 2016
CASE NO LC/H/783/2012
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/207/2016

HARARE, 15 FEBRUARY 2016 &				         CASE NO LC/H/783/2012

8 APRIL 2016

In the matter between

LAMECK TARASANA						APPELLANT

Versus

CITY OF HARARE							RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	Ms P Kashiri (Legal Practitioner)

For the Respondent    Ms A Zvoutete  (Principal Legal Officer)

MUZOFA J:

The appellant was employed by the respondent as a patrol man until July 2009 when he was dismissed from employment.

The background to this case is that the appellant was absent from work from 27 January 2007 to 11 March 2009. March 11, 2009 was the date the appellant was invited to a hearing. He did not attend the disciplinary proceedings. The respondent proceeded in his absence. He was found liable and dismissed him.

The appellant referred the matter to the Employment Council for the Harare municipal Undertaking. At conciliation stage the parties entered into a certificate of settlement premised on the procedural irregularities in handling the matter. The appellant was to be paid six (6) months’ salary for the procedural irregularities. The certificate of settlement was issued on 14 December 2010.

Having agreed as such the appellant reported for duty but the respondent would not take him on the basis that his employment contract had been terminated.

The appellant referred a grievance alleging unlawful suspension to the Municipal Undertaking. Parties could not agree and eventually the matter was referred to arbitration. The arbitrator made a finding in favour of the respondent.

The appellant approached this court on appeal. Four grounds of appeal were set out on the notice of appeal, to my mind they raise two issues the interpretation of the certificate of settlement whether it terminated the employment contract between the parties and the appropriate remedy where a suspension is held to be unlawful.

I will address the grounds of appeal in turn.

The effect of the Certificate of Settlement

For the appellant it was submitted that the Certificate of Settlement addressed the issues of the unlawful suspension. The contract of employment was not terminated by the agreement. It was further submitted that the expression unius est exclusio alterius rule on which the arbitrator relied on in this case meant the express mention that the appellant was to be paid six months’ salary for procedural irregularities meant the issue on termination was excluded in this agreement.

The respondent submitted that the Certificate of Settlement settled the issue between the parties. The payment made was for the termination of the contract. The respondents’ understanding of the expression unius est exclusio alterius in this case was that the express mention that the appellant was to be paid six months’ salary for unlawful suspension and the silence on the issue of reinstatement meant reinstatement was not part of the agreement.

The appellant’s issue for determination leading to the Certificate of Settlement was captured by the labour officer as “alleged unlawful suspension and unfair labour practice.”

The terms of the agreement were set out as follows:

“Lameck Tarasana to be paid six months’ salary for the procedural irregularity. This to be implemented by the 11th of December.”

A Certificate of Settlement amounts to a contract or an agreement between the parties. Where a dispute arises out of an agreement the court is called upon to interpret the intention of the parties. Recourse can be made to the events leading and surrounding the making of the agreement.

The respondent in its submissions elaborated that the payment of six months salaries was for the procedural irregularities attendant to the matter. These included the failure to communicate whether or not the appellant had been suspended, failure to notify the appellant on the date of the disciplinary hearing, proceeding with the hearing in his absence and ceasing the appellant’s salary before due process.

This is an issue of interpretation. In Coopers v Lybrand & Ors v Bryant 1995 (3) SA 761 at 767 D-F JOURBERT JA said:

“The matter is essentially one of interpretation. I proceed to ascertain the common intention of the parties from the language used in the instrument. Various cannons of constitution are available to ascertain their common intention at the time of concluding the cession. According to the golden rule of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.”

In this case the language used in the Certificate of Settlement should be given its ordinary meaning. The ordinary meaning is that the appellant was to be paid for the procedural irregularities. The parties did not engage on the issue of termination of the contract. The payment was meant to address the irregularities occasioned by the respondent only, as set out in the Certificate of Settlement, thus negating the irregularities.

I do not find any absurdity from that interpretation. At that point in time it would seem the respondent conceded to the numerous procedural irregularities which effectively set aside the resultant dismissal. I say this because in its submissions that the appellant was not entitled to reinstatement the appellant did not rely on the initial dismissal constituted by the procedural irregularities. The appellant relied on the Certificate of Settlement to argue that the appellant was not entitled to reinstatement.

The expression relied on by the arbitrator to my mind does not justify the conclusion reached. The expressio unius maxim is not a rule of interpretation, it is an aid and must be applied with extreme caution. As stated in Regina v Ndhlovu (1) 1980 ZLR 96 the primary rule of interpretation is that words must be given their ordinary meaning unless some inconsistency may arise.

Even if it were to be applied I believe the maxim which speaks to the relationship in which the thing expressed stands to the thing which is not expressed. In casu the parties specifically tied the note in so far as the procedural irregularities were concerned. However they did not engage on the issue of termination. The express mention of that meant termination of the contract was not included in the agreement. I am unable to agree with the arbitrator, on this aspect.

If indeed the parties had terminated the contract by mutual agreement this must have been reduced to writing. The law requires that mutual termination of a contract of employment be in writing. Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374.

I did not hear the respondent to rely on any agreement save for the Certificate of Settlement.

There was no proper termination of contract. It would appear that this matter has so far not been decided on the merits. The appellant has not said he did not abscond from work. The respondent did not properly prosecute its matter. I believe the justices of this case would be achieved for both parties if the matter is referred back for the respondent to deal with the matter on the merits.

The appellant was compensated for the purported procedural irregularities. Indeed this was a badly drafted document since it does not even relate to the back pay he was entitled to. This takes me to the second ground of appeal, the remedy for an unlawful suspension.

Although parties refer to an unlawful suspension the documents filed of record do not show that the appellant was suspended at all. The respondent indicated that having noticed that the appellant was not reporting for duty he was invited to appear before a disciplinary hearing. There’s no mention of the unlawful suspension. The court will not address this ground of appeal on that basis. There was no suspension to talk about.

This is an old matter, the allegations are that he absented himself from 2007 to 2009 over two years. As stated before the appellant did not claim that he was innocent. It has been held a person guilty of misconduct should not escape the consequences of his misdeeds simply because another employee failed to conduct disciplinary proceedings properly. He should escape such consequences because he is innocent. Air Zimbabwe v Chiku Mensa SC 89-04.

In the result the following order is made:

The appeal be and is hereby granted. The matter is remitted to the appellant for a trial denovo within 30 days of this order.

The arbitral award is set aside.

No order as to costs.

Thondhlanga & Associates, appellant’s legal practitioners