Pulse Medical Care (Pvt) Ltd t/a Pulse Pharmaceuticals v Tinnapi Nyawo & Sarah Mudimu N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4 JUNE 2025
JUDGMENT NO. LC/H/252/25
CASE NO. LC/H/295/25 & LC/H/315/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4 JUNE 2025

AND 22 JULY 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/252/25 CASE NO. LC/H/295/25 & LC/ H/315/25

PULSE MEDICAL CARE (PVT) LTD t/a

PULSE PHARMACEUTICALS	APPLICANT/APPELLANT AND

TINAAPI NYAWO	FIRST RESPONDENT

SARAH MUDIMU N.O.	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant/Appellant	Mr. A.K. Maguchu

For First Respondent	Mr. T. Mupamhadzi With Mr. T. Kabuya

No Appearance for Second Respondent

MURASI J.,

The two cases involve an application for review and an appeal, against the decision of the Second Respondent. The matters were filed separately but had to be joined at the hearing.

I should hasten to make the observation that Applicant/Appellant appealed against the initial decision of the Second Respondent wherein it was contended that Second Respondent lacked jurisdiction to determine the matter in matter. That matter was placed before Honourable Chivizhe

J. What is surprising nis that Applicant/Appellant proceeded to file the present matters before a determination was made by Honourable Chivizhe J. This was tantamount to placing other issues for determination before the crucial issue of jurisdiction was finalised. The more surprising feature was that none of the parties whom appeared before this Court made any reference to those proceedings. On discovering this, after judgment had been reserved, the Court inquired of the parties as to the reasons for so-doing. It was fortuitous that a decision was later made by

Honourable Chivizhe J before this Court made a determination on the matter. Such behaviour cannot be condoned.

Background Facts

First Respondent was employed by the Applicant. The facts show that a lot of mistrust developed between Applicant and First Respondent. The reasons for this development are wide and varied and there is no consensus between the parties as to what was the cause. The same lack of consensus bedevilled the manner in which either party explains as how the employment was terminated. First Respondent’s version is that he resigned as a result of the unfavourable working conditions presented to him by the Applicant. Applicant has a separate version touching on dismissal following a disciplinary hearing held in First Respondent’s absence. This led to then matter being brought before the Second Respondent.

Application for Review LCH 295/25

The grounds for review are as follows:

The award is grossly irregular in that the arbitrator proceeded to quantify damages inn the award after having made a ruling that damages would only be quantified in a secondary hearing which was to be held after the handing down of a determination on the question of the applicant’s liability on constructive dismissal.

The proceedings were grossly irregular in that the arbitrator quantified damages due to the respondent without giving the parties an opportunity to be heard on quantification and without giving the parties an opportunity to lead evidence on quantification.

The award is grossly irregular inn that the arbitrator abdicated on her duty to determine the central and contested issue of whether the respondent’s claim was incurably self- destructive in tat the respondent averred that he was verbally dismissed before he allegedly handed over his letter of resignation.

The award ought to be vacated on the ground that the arbitrator lacked jurisdiction over the claims for salary arrears, medical aid and fuel as such claims did not fall into the scope of the terms of reference to arbitration.

The proceedings were grossly irregular in nthat the arbitrator imputed non-resistance or consent by the applicant to claims where there was none in the following instances;

That respondent is the one who terminated the contract of employment.

That respondent was entitled to his claim for leave days as claimed.

That respondent was entitled to salary arrears, medical aid and fuel as claimed.

Grounds of Appeal Case Number LCH/315/25

Appellant’s grounds of appeal were couched in the following manner:

The arbitrator erred at law in determining the issue of applicant’s (appellant) liability for constructive dismissal, cash in lieu of leave, arrear salary, medical aid and fuel and the

quantum of such liability in the absence of any evidence from respondent, the party with the onus.

The arbitrator erred at law in failing to determine whether the respondent’s claim was presented in an incurably self-destructive manner in that claimant averred that he only handed in the letter of resignation after the applicant (appellant) had already dismissed him.

The arbitrator seriously misdirected herself on the facts in finding that it was common cause that respondent terminated the contract of employment. Contrary to the arbitrator’s finding, whether respondent had terminated the contract was a contested fact.

The arbitrator seriously misdirected herself on the facts in relying on the variation of te contract of employment as an occurrence entitling respondent to resign inn terms of section 12B (3) (a) of the Labour Act (Chapter 28:01) yet the respondent had expressly affirmed the contract post this variation.

The arbitrator seriously misdirected herself on the facts in finding that appellant’s suspension of the respondent with pay and benefits amounts to constructive dismissal when the suspension was based on genuine concerns of misconduct and was meant to allow parties a period of reflection as they sought a resolution of the allegations.

The arbitrator erred at law in failing to find that the appellant’s letter of 20 October 2022 as read with the respondent’s undated response demonstrate that the parties mutually agreed to a termination of the contract and hence, the respondent did not satisfy the requirement that he unilaterally terminated the contract.

The arbitrator erred at law in determining claims for salary arrears, medical aid and fuel when these claims did not form part of the issues placed before her.

The arbitrator seriously misdirected herself on the facts in finding that appellant did not dispute liability and quantum on the cash in lieu of leave claim when both liability and quantum were contested.

SUBMISSIONS ON REVIEW

Mr. Maguchu stated that he was abiding by the documents filed of record and added that the precedents cited in the heads of argument had not been addressed by the First Respondent. He submitted that the first and second grounds for review related to facts which were not in contention in that the Second Respondent had proceeded to deal with the issue of quantification without hearing evidence from the parties. He further submitted that the Second Respondent had indicated that the parties would be heard. He argued that contrary to such undertaking, Second Respondent had quantified the damages without evidence as submissions made by the parties did not amount to evidence placed before the Second Respondent.

As far as the third ground for review was concerned, Mr. Maguchu stated that First Respondent had narrated the events when he had met Applicant’s Chief Executive Officer whom he alleged had proceeded to dismiss him verbally. It was argued that this version of events differed from the version where he insisted that he had tendered his resignation to the Chief Executive Officer. He argued that this an anomaly which was supposed to be addressed by the Second Respondent. He

added that the fourth ground for review related to the fact that the Second Respondent had proceeded to deal with issues that were not referred to her in the terms of reference. In the fifth ground for review, it was submitted that the Second Respondent had made averments to the effect that there was no resistance on the Applicant which was not factually correct.

In response, Mr. Mupamhadzi submitted that First Respondent was abandoning the preliminary point raised in the papers filed of record. He further submitted that averments made by the Applicant had undertaken to call the parties to a hearing was not contained in the record of the proceedings. He added that without that part of the record, a finding of whether there was an irregularity could not be made. His further argument was to the effect that the award itself does not address the fact that there was such an undertaking Mr. Mupamhadzi submitted that First Respondent’s statement of claim contained the figures used by the Second Respondent. He further argued that Applicant was supposed to give responses to the claims made by the First Respondent.

As far as the third ground for review was concerned, Mr. Mupamhadzi submitted that Applicant was tendering three versions of the mode of termination of the contract of employment and was therefore asking the Court to pick any one of them as the correct one. He further stated that the Court must find, as did the arbitrator, that termination was at the instance of the First Respondent and that this would lead to the conclusion that the First Respondent was constructively dismissed.

In respect of the fourth ground for review, Mr.Mupamhadzi submitted the issues referred to the Second Respondent for adjudication were clear, that is, whether there was an unlawful termination of the employment contract, and, if so, the remedy thereof and that Second Respondent had not gone on a frolic of her own. He also added that the issue of leave days was part of the First Respondent’s claim and forms part of the record and should be determined by the Court in that spirit.

SUBMISSIONS ON APPEAL

Mr. Maguchu abided by the documents filed of record. He submitted that there was no evidence led before the arbitrator and that submissions do not suffice as evidence. In respect of the second ground of appeal, Mr. Maguchu stated that Respondent had alleged that he had been verbally dismissed yet there was evidence on record of a letter written by the Respondent where he had agreed to a mutual termination of contract well after the purported date of resignation. He argued that the arbitrator should have found in favour of the Appellant in the circumstances.

It was also submitted that arbitrator could not have made a finding that Appellant had not resisted the averments made by the Respondent when the record shows that the letter supposedly written by the Respondent was not produced in evidence. Mr. Maguchu further stated that there was a variation of contract and that there had been no protest on the part of the Respondent and that Respondent had affirmed that he still wanted to continue with employment with the Appellant even after the variation of the contract. It was also submitted that the parties’ legal practitioners had engaged with each other with a view to finalising the issue but this had not happened.

In response, Mr. Kabuya stated that the first and second grounds of appeal raise procedural issues and as such were improperly before the Court and should be struck off. He submitted that the record was replete with evidence submitted on the issue of liability and quantification. He also added that the letter of resignation part of the claim and that the claim for damages was accompanied by documentary evidence.

Mr. Kabuya also submitted that what came out of the submissions by the Appellant was that there was no mutual separation and that nothing was agreed to in writing. He argued that the finding made by the arbitrator that there was a resignation by the Respondent was correct. AS to the fact that the arbitrator was not correct in stating the issues to be common cause, Mr. Kabuya submitted it became common cause because there was no mutual termination and no verbal dismissal and that from the facts the arbitrator made the correct finding that Respondent was constructively dismissed.

Mr. Kabuya further argued that the findings were not made purely on the unilateral variation of the employment contract and meeting at the gym, but that Appellant had made the working conditions intolerable. He stated that the issue of the unilateral variation of the employment contract remained a component thereof. He denied that it was ever the arbitrator’s reasoning that the Respondent’s suspension amounted to constructive dismissal. Mr. Kabuya further stated that the letter of October referred to by the Appellant came after the resignation. In respect of the arrear salaries, he submitted that after making the finding that there was constructive dismissal, the arbitrator had to proceed to the next stage of determining the remedy thereof which included any issues related to what was owed to the Respondent on termination of the employment contract. Mr. Kabuya submitted that Appellant had not opposed the issue of the quantum of damages and what was not denied should be taken as having been admitted. He prayed for the dismissal of the appeal.

ANALYSIS AND DETERMINATION-REVIEW

Generally, in a review, what the court is looking for is whether the court or tribunal a quo has conducted a hearing in terms of the law or otherwise. Review is a limited remedy. It concerns itself with the decision-making process and, in limited circumstances, the end result. Where the decision-making process has been conducted inn terms of the law, there is hardly ever a ground for review except in exceptional circumstances. Essentially when a party is aggrieved by the method or process which led to the decision, that party applies for a review. A review is therefore not concerned with correcting a decision on the merits, but it is aimed at the maintenance of legality. It is concerned with the process that was used in coming up with the decision. (See Pretoria Portland Cement Co. Ltd v Competition Commission 2003 (2) SA 385 at 402.)

In the first and second grounds for review, Applicant makes the averment that the Arbitrator proceeded to quantify damages without hearing evidence from the parties. Applicant further argues that the Arbitrator could not have proceeded to do so without hearing the parties especially the Employee. In this regard, it was submitted that no meaningful assessment of damages could have

been made in the circumstances. Respondent submitted that the Employee made submissions in respect of the losses he suffered in the claim. It was also argued that the claim contained the figures that were used by the Arbitrator in the quantification process. Respondent further averred that Applicant had not placed any contrary arguments inn this respect before the Arbitrator and was therefore taken to have admitted that which it had not opposed. Av reading of Respondent’s submissions does not show that it states categorically that evidence was heard by the Arbitrator in the quantification process.

The Arbitrator had this to say at page 235 of the record:

“The claimant submitted that it is difficult for him to find alternative employment after several attempts shown in annexures T1 to T7 which are application letters and the responses. When one’s dismissal is found to be unlawful, the claim of damages quickly arises from the date of unfair dismissal.”

In the next paragraph, the Arbitrator proceeds to state that she agreed with the submissions made by the Respondent and relates what should happen in mitigating one’s losses. The following paragraph shows that the Arbitrator has arrived at the reasonable period within the Respondent was reasonably expected to have found employment. The period is given as 36 months and that the monthly salary was USD$15 010-00 per month.

What is interesting about this process is that there is no reference whatever to Applicant’s position on the issue of quantification. There was no evidence showing:

The Employee’s age

The employee’s qualifications

How the Employee had been surviving from the date of dismissal.

What amounts the Employee got during that period.

More importantly, the Applicant’s side of the story was not heard. In Taylor v Ministry of Education & Anor 1996 (2) ZLR 772 (S), it was held that the audi alteram partem principle applies both where a person’s existing rights are adversely affected and where he has legitimate expectation that he will be heard before a decision is taken that affects some substantive benefit, advantage or privilege that he expects to acquire or retain and which it would be unfair to deprive him without first consulting with him.

I now turn to the Respondent’s submissions in this respect. At page 249, it is recorded thus:

“After the Arbitrator found the Applicant liable for my constructive dismissal it then proceeded to deal with the issue of quantum of liability well in accordance with the terms of reference.”

There is no single averment that the Arbitrator called the parties to give evidence on the issues of evidence in the process of quantification of damages by the Arbitrator. Countless decisions from

the Supreme Court have implored the court and tribunal to ensure that evidence is led during quantification proceedings. The Arbitrator in cause, failed or neglected to do so. This certainly amounts to a procedural irregularity.

Having found that that there were procedural irregularities when dealing with the first two grounds for review, it becomes unnecessary to deal with the rest of the grounds for review.

In the result, the Court makes the following Order:

The application is hereby granted.

The decision of the Second Respondent dated 30 December 2024 is hereby set aside.

The matter is remitted for a hearing de novo before a different Arbitrator appointed by the Principal Labour Officer from a list of arbitrators appointed in terms of section 98 (6) of the Labour Act, (Chapter 28:01).

The Terms of Reference before that Arbitrator shall be as follows:

Whether the Employee was constructively dismissed, if so, the remedy thereof.

Whether the Employee is entitled to leave numbering 405.4 days.

The costs of arbitration shall be borne by the Applicant.

In the present application, each party shall bear its own costs.

APPEAL

The Court, having set aside the proceedings in Case Number LC/H/295/25, makes the following Order:

The appeal is hereby struck off the roll by reason of it becoming moot, the decision of the Arbitrator having been set aside in Case Number LC/H/295/25.

Each Party to meet its own costs.

Maguchu & Muchada Legal Practitioners-	Applicant’s/Appellant’s legal practitioners MATLAW Attorneys-at–Law	First Respondent’s legal practitioners.