Nickson Banda v Tasip Mining Syndicate

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/141/24
HARARE 25 MARCH 2024 27 MARCH
CASE NO LC/H/114/24
2024
NICKSON BANDA
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 25 MARCH 2024 27 MARCH
2024

JUDGMENT NO LC/H/141/24
CASE NO LC/H/114/24

NICKSON BANDA
APPELLANT

TASIP MINING SYNDICATE
RESPONDENT

Before the Honourable G. Musariiri Judge:

For Appellant - Mr L. Pwanyiwa, Unionist
For Respondent - Mr M. Ncube, Attorney

MUSARIRI, J:

On 3rd March 2023 at Bindura, Labour Officer L. Denhere issued a ruling which reads,
“Having considered the foregoing analysis I dismiss the claims for underpayment and non-payment of termination benefits. The respondent is ordered to pay the claimant cash in lieu of for 90 days accrued and give him a reference letter.”

Appellant (employee) then appealed the ruling in terms of section 92D of the Labour Act Chapter 28:01 hereafter called the Act. Respondent (employer) opposed the appeal. The grounds of appeal were a duet thus,

“1. The tribunal aquo erred and grossly misdirected itself on issues of fact that no reasonable person exercising their mind would arrive to such a conclusion in that the Labour Officer failed to make a finding as he must have done, that the Appellant was unfairly dismissed in circumstances were he resigned as a result of intolerable employment relationship at the deliberate whim of the Respondent.
2. The Labour Officer grossly erred and misdirected himself in holding that the Appellant was not entitled to statutory terminal benefits and/or damages in lieu of reinstatement.”

The Labour Officer’s (LO) analysis is stated tersely as follows,

“Findings and analysis
1. Claimant’s claim for underpayment is not substantiated and therefore falls flat on its face.
2. The respondent failed to prove that the claimant took part of his vacation leave and therefore the claimant is awarded 90 days’ vacation leave.


3. The claim for payment of termination benefits falls as the termination benefits is broad and nothing specific has been claimed.

4. The claim for work reference from the company is upheld.

In his ruling the L.O dealt with each and every one of the four claims made by the employee. The claims, signed for by the employee, did not mention anything to do with constructive dismissal. Such dismissal is only mentioned for the first time in the notice of appeal to this Court. In fact, the word “dismissal” does not appear in his claim. The claim as made is wholly consistent with the employer’s position that the employee resigned to pursue greener pastures elsewhere.

The employee sought to argue that constructive dismissal is a point of law which can be raised at anytime. Reliance was placed on the case of TN Harlequin v Quest Motors SC 30/18which stated at paragraphs 16 and 17 that “case authorities hold that a question of law may be advanced for the first time on appeal. This is however permissible if the point is covered by the pleadings in the Court a quo and if its consideration will involve no unfairness, to the party against whom it is directed.”

The closest the employee got to deal with his “constructive dismissal” was his replication before the Labour Officer where it stated “You also said the salary I am claiming was never agreed upon because you did not want to sit and negotiate for the past 4 years and 4 months and that is why I wrote a letter of….(under payment).”

The alleged letter was not produced or clarified. This oblique reference or vague allegation cannot be said to cover the point (constructive dismissal) as required by Harlequin case. Thus it is concluded that the point cannot be raised for the first time in this Court.

The employee claimed that the agreed wage was US$800.00 per month but he was paid US$200.00. The employer denied the claim and stated that as a managerial employee (Mine Manager) the employee was paid the wage he agreed (orally) with the employer. The employee thus bore the onus to prove the alleged underpayments.

Reference, First Mutual v Muzivi SC 09/07
Per Cheda JA at p 5-6


“The suggestion that the employer failed to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue. It is the respondent (employee) who had the onus to prove his claims.”

In *casu* the employee failed to substantiate his claims as found by the Labour Officer. Inevitably the claim fell to be dismissed. Likewise, the claim for “termination benefits” was not substantiated. It was not even clarified what the benefits were. There is a broad range of terminal benefits. It was necessary clarify which benefits were claimed to enable the employer to respond appropriately. The benefits were neither clarified nor quantified thus they were properly dismissed by the Labour Officer.

It is concluded that the both grounds of appeal ought to be dismissed as devoid of merit.

**Wherefore it is ordered that**

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs

G MUSARIRI

J-U-D-G-E
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