Murewa Rural District Council v Faith Kurima

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LCH160/2023
HARARE 7 JUNE 2023 14 JUNE 2023
CASE NO LCH29/23
MUREWA RURAL DISTRICT COUNCIL
APPELLANT
FAITH KURIMA
RESPONDENT
Before the Honourable G. Musariri Judge:
---------


==============================

MUREWA RURAL DISTRICT COUNCIL

FAITH KURIMA

RESPONDENT

Before the Honourable G. Musariiri Judge:

For Appellant    Mr A. Nobela, Attorney

For Respondent    Mr T. Nyamucherera, Attorney

MUSARIRI, J:

On the 14th December 2022 at Harare, Designated Agent W Ruziwa issued a determination. He ordered appellant (employer) to pay respondent (employee) outstanding salaries, allowances and NSSA deductions. The employer then appealed to this Court in terms of section 92D of the **Labour Act Chapter 28:01** hereafter called the Act. The employee opposed the appeal.

The grounds of appeal were triplicate thus,

“1. The Designated Agent grossly erred factually and at law in failing to make a finding that by failing to give the Appellant 3 months’ notice, the Respondent repudiated her contract of employment. By repudiating the Designated Agent ought to have made a finding that the Respondent was not entitled to any benefits.

2. The Designated Agent erred factually and at law in failing to make a finding that NSSA dues are not awarded to the employee but to NSSA, and had no powers to make such award.

3. The Designated Agent grossly erred factually and at law in awarding the Respondent the relief sought without justifying how the quantified figures were arrived at. The figures were completely baseless.”

The grounds shall be dealt with in turn.


1\textsuperscript{st} Ground

It is common cause that the employee resigned from her employment without giving due notice to the employer. The employer then withheld 3 months wages and benefits from the employee’s dues on the basis that she had repudiated her contract. The Designated Agent dismissed that argument and relied on the provisions of the Act. In this Court the employer’s attorney relied on the case of

**Kandoma v Shades SC 189/06**

As he conceded that the case does not deal with resignation on short notice the case is inapplicable. What is applicable is the statutory provisions relied on by both the Designated Agent and the employer’s attorney. It is section 13 of the Act which provides that

“(1) Subject to this Act or any regulations made in terms of the Act, whether any person-

(a) ……

(b) resigns from his employment;

(c) he or his estate, as the case may be shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, medical aid, social security and pension, and the employer shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practical after such event, and failure to do so shall constitute an unfair labour practice.” (Underlined for emphasis.)

Subsection (2) goes on to make it a criminal offence for an employer to withhold the employee’s due without “the Minister’s permission.”. In casu the employer does not say he applied for obtained the requisite Ministerial permission. It therefore follows that the employer had no legal basis for withholding the employee’s dues. The ground of appeal thus lacks merit.

2\textsuperscript{nd} Ground

The employer argued that NSSA contributions are payable to NSSA and not the employee. That is correct in as far as the time when employment contract is running. However, the situation changes upon termination (including resignation) of the contract. What applies upon termination are the afore-quoted provisions of section 13 of the Act. The underlined provisions relating to “social security and pension” cover NSSA dues. It therefore follows that such dues not forwarded to NSSA become payable to the employee upon termination. This ground like its predecessor lacks merit.


3rd Ground

The is ground takes issue with the quantification of the employee’s claim. The Designated Agent did not set out his calculation of the figures he awarded. Apparently he just took the employee’s word without himself dealing with the individual items like salary dues, covid dues or food hamper dues. The dues must be substantiated by the last payslip or other proofs. As a result, his award cannot be sustained. However, it is clear that the employee is owed those items but the quantum needs to be properly assessed.

CONCLUSION

This Court dismisses the $1^{st} and $2^{nd} grounds of appeal. It however finds merit in the $3^{rd} ground. This requires that the matter be remitted back to the Designated Agent for a proper assessment of the employee’s dues.

Wherefore it is ordered that;

1. The appeal be and is hereby partially allowed;

2. The matter is remitted back to the Designated Agent or a proper assessment of the quantum of the dues payable by appellant to respondent; and

3. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E


LC/H//
2023
LC/H/
29 /23
--- END OCR FALLBACK ---