Nunurai Bore v Juvanna Take Aways (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/787/2016
HARARE, 28 OCTOBER 2016 &
CASE NO LC/H/LRA/174/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/787/2016

HARARE, 28 OCTOBER 2016 &			            CASE NO LC/H/LRA/174/2016

16 DECEMBER 2016

In the matter between

NUNURAI BORE							APPLICANT

Versus

JUVANNA TAKE AWAYS (PVT) LTD				1st RESPONDENT

And

FLORENCE CHINYOWA						2nd RESPONDENT

Before the Honourable Maxwell J

The Applicant in Person

For the 1st Respondent     S Chako (Legal Practitioner)

For the 2nd Respondent    B Makururu (Legal Practitioner)

MAXWELL J:

On 28 October 2016 after hearing the applicant and counsel I granted an order in favour of the applicant herein. On 31 October 2016 a letter by the first respondent’s Counsel addressed to the Registrar requesting written reasons for my decision was placed before me. These are my reasons:

The applicant filed an application for the confirmation of a draft ruling he made in the matter between the respondents. The application is in terms of section 93 (5a) of the Labour Act [Chapter 28:01] as amended.

The draft ruling gives the background of the dispute. The second respondent was employed by the first respondent as a counter hand as from 26 July 2011. Her contract of employment was terminated on 30 January 2016 on account of misconduct in terms of SI 15-06. The second respondent claimed payment of the minimum retrenchment package for the four years that she worked for the first respondent. She based her claim on the provisions of section 12C (2) of the Labour Act as amended. She claimed a total of $477-36. The first respondent disputed the second respondent’s entitlement to the retrenchment package. It argued that payment of the retrenchment package is only applicable to employees whose contracts of employment are terminated on notice or through retrenchment.

The applicant interpreted the provisions of section 12 C (2) and 12 (4a) (a) to (d) to mean that payment of minimum retrenchment package is applicable to employees even those dismissed for misconduct. The applicant found that the second respondent had understated her claim. Accordingly he ruled that she should be paid a total of $491-74.

On the date of the hearing, the applicant stood by his interpretation and prayed for an order confirming his draft ruling. Understandably counsel for the second respondent indicated that the second respondent was not opposed to the order sought by the applicant. Counsel for the first respondent submitted in heads of argument that the sole issue for determination is whether or not, an employee dismissed pursuant to disciplinary hearing proceeding is, at law, entitled to payment of a minimum retrenchment package. In his view he is not. He argues that sections 12 (4a) and 12 C (2) of the Act are only confined to termination.

Section 12 (4a) states:

“No employer shall terminate a contract of employment on notice unless

The termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101 (9); or ……..”

Counsel for the first respondent avoided addressing what termination in terms of an employment code or the model code means. My understanding is that termination in terms of an employment code or the model code is pursuant to disciplinary issues.

Section 12 C (2) states:

“Unless better terms are agreed between the employer and employees concerned or their representatives, a package (herein after called “the minimum retrenchment package”) of not less than one month’s salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12 (4a)(a), (b) or (c ), no later than date when the notice of termination of employment takes effect.” (underlining for emphasis).

The reference to section 12 (4a) (a) is clear and unambiguous. It is the incorporation of cases involving dismissal due to disciplinary proceedings for compensation. Counsel for the applicant argued in heads of argument that:

“Clearly, the legislature could have never intended that an employee who is dismissed from employment for misconduct or incompetency be entitled to compensation for loss of employment where such loss would have been occasioned by themselves.”

In S v Takaendesa 1972 (1) ZLR 162 BEADLE CJ (as he then was) referred to “the elementary (golden) rules on the interpretation of statutes”, and cited, with approval, the excerpt from Maxwell on Interpretation of Statutes. The quotation adopted by the then Chief Justice states:

“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be …. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’”.

I find no reason to disagree with the applicant.

For the reasons stated above I confirmed the applicant’s draft ruling.

Mawire J T & Associates, 1st respondent’s legal practitioners

Makururu & Partners, 2nd respondent’s legal practitioners