Metal Sales Group (Pvt) Ltd v Tarirai Mapuvire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/732/2016
HARARE, 26 OCTOBER 2016 &
CASE NO LC/H/557/2014
18 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/732/2016

HARARE, 26 OCTOBER 2016 &				         CASE NO LC/H/557/2014

18 NOVEMBER 2016

METAL SALES GROUP (PVT) LTD				          APPELLANT

TARIRAI MAPUVIRE						         RESPONDENT

Before the Honourable G Musariri, Judge

(IN CHAMBERS)

MUSARIRI J:

This matter was referred to me for determination on the record as provided by section 89 (2)(a)(i) of the Labour Act Chapter 28:01 (hereafter called the Act).

On 4th June 2014 at Harare, Arbitrator M Dangarembizi issued an arbitration award. He ordered the appellant to pay the respondent outstanding salaries and benefits in the sum of $5 776-61. The appellant then appealed to this Court against the award. The respondent opposed the appeal. The grounds of appeal were four-fold as follows:

“1.	The Arbitrator erred in refusing to obey the dictates of the law when he awarded that the appellant should not deduct three months’ notice salary from the respondent’s terminal benefits even if the respondent did not give the required Notice to leave the appellant’s employ in clear contravention of the Labour Act [Chapter 28:01] as amended in the Labour Relations Amendment No 17 of 2002, section 12 subsection (4).

2.	The respondent was on a contract without limit of time and had exceeded two years in the employ of the appellant.

3.	The arbitrator failed to realise that Mutual Termination was only to avoid the respondent’s possible discharge from the appellant’s employ and did not remove the respondent’s obligation to give notice.

4.	The respondent was therefore required to give three months’ notice to leave the appellant’s employ according to subsection (4) (a) of the Labour Relation Amendment No 17 of 2002.”

The respondent countered in brief thus:

“(a)	The appellant is approaching this court with dirty hands. The appellant has not complied with the arbitral award which they are in agreement with. The appellant is only trying to delay fulfilling the award.

(b)	The appellant cannot argue against payment or withholding payment in lieu of Notice because separation was mutual between the parties.”

It is common cause that the employment in casu could be terminated on three (3) months’ notice given by either party. That position is underpinned by the provisions of section 12 (4) (a) of the Labour Act. The respondent resigned with immediate effect on the 17th December 2013. His resignation letter is filed of record. Its contents stated that:

“I wish to inform the organisation that I am resigning on mutual grounds with immediate effect after meeting and agreeing with yourselves today 17 December 2013. I wish the company well.” (The underlining is for emphasis).

The appellant accepted the resignation in its letter dated 19th December 2013. It thanked the respondent for his services and promised to pay his terminal benefits when ready to do so. It is evident that termination was by mutual agreement. None of the parties mentioned “notice” of termination. Least of all did the appellant insist on receiving notice or payment in lieu thereof. This confirms the respondent’s averment that the termination was by mutual agreement. The arbitrator was persuaded by the respondent’s case. I consider that the arbitrator was correct in finding as he did on the issue of “notice”. On that basis there is no cause for reversing the award.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

The arbitration award dated the 4th June 2014 issued by Arbitrator M Dangarembizi is upheld.

G Musariri

J U D G E