Shelton Chibanda and 4 Ors v Gracious Rutendo Chirenda N.O. and Catering Industry Pension Fund

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/409/25
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 15TH MAY 2025 ,10TH AND 30THJUNE 2025

In the matter between SHELTON CHIBANDA AND

DOUGLAS ZINGARA

AND

RANGARIRAI BECAUSE

AND

ROSELINE HWATA

AND

CAVERN MUZONDO

AND

GRACIOUS RUTENDO CHIRENDA N. O.

AND

JUDGMENT NO.LC/H/409/25

CASE NO. LC/H/ 480/24

1ST APPLICANT

2ND APPLICANT

3RD APPLICANT

4TH APPLICANT

5TH APPLICANT

1ST RESPONDENT

CATERING INDUSTRY PENSION FUND	2ND RESPONDENT

BEFORE THE HONOURABLE MRS JUSTRICE MAKAMURE JUDGE

FOR ALL APPLICANTS : MS N.S.NDLOVU

FOR THE IST RESPONDENT : NO APPEARANCE

FOR THE SECOND RESPONDENT: G. MACHINGAMBI

MAKAMURE J:

This is an application for quantification and payment of arrear salaries and benefits. It is opposed.

It is common cause that there was an employment relationship between the parties. The 2nd respondent never terminated the applicants’ contracts of employment with it. Even though such was the position, they were not getting remuneration from the 2nd respondent. There was a dispute regarding the status of employment between the parties. The dispute was to the effect that the applicants had been transferred from the employ of the 2nd respondent to the National Employment Council for the Catering Industry(NEC) .The dispute was taken to a labour officer. The labour officer found that the applicants had not been transferred but were still employees of the 2nd respondent. The finding in the words of the labour officer was:

‘That in the absence of solid evidence to suggest that these employees were transferred from CIPF to NEC the CIPF remains the bona fide employer of the claimants and should treat them as such without loss of pay and benefits.

All salary (arrears) and any other benefits that might have been paid due to the claimants should be paid in full to date as these have always been CIPF employees.’

An application was made by the labour officer to this Court for confirmation of that order, then called ‘a draft ruling’. This Court by judgment LC/H/153/22 dated 10June 2022 confirmed the ruling by the labour officer that the applicants were bona fide employees of the 2nd respondent. The Court Order reads:

‘1. The ruling by the Labour Officer in this matter be and is hereby confirmed as a ruling of this court.

The employees are bona fide employees of 2nd Respondent.

The 2nd Respondent should pay the employees their salary arrears and benefits.

The 2nd Respondent will bear the applicant’s and the 1st Respondent’s costs.’

In terms of paragraph (3) above the applicants being employees of the 2nd respondent , were entitled to earnings and benefits.

Aggrieved by that outcome , the 2nd respondent appealed to the Supreme Court against that judgment. The Supreme Court in Order SC663/22 dated 2 June 2023 which was granted by consent of the parties dismissed the appeal. It is noted that the 2nd respondent through its legal practitioners of record consented to the dismissal of the appeal by the Supreme Court. This to me shows that the 2nd Respondent was aware that the applicants remained its employees and

that it owed the applicants what they were entitled to .The dismissal of the appeal confirmed the judgment of this court. The applicants’ respective letters of appointment form part of the record.

The applicants deposed to affidavits in support of their claims. The main affidavit was deposed to by Shelton Chibanda, 1st applicant . The other applicants agreed with the contents of that affidavit.

The record shows that parties engaged each other and tried to ascertain the date that could be taken as the cut - off date. The engagement did not yield the desired results hence the present application. At page 55/209 of the record the 2nd Respondent’s legal practitioners of record wrote the applicants’ legal practitioners a letter dated 4 December 2023 along the following lines:

“We refer to the above matter and acknowledge receipt of your letter of 10 November 2023. We refer to your subsequent telephone follow up on the 29th November 2023.

Kindly note that our client’s representative was not available until sometime last week.

We have asked our client to finalise the calculation of figures based on the applicable bargaining agreements . Once the process is completed , we will revert to you to arrange the holding of a meeting.

Kindly bear with us as we have asked client to perform a detailed exercise on this.’

At page 58/209 of the record the following letter dated 16 January 2024 which was written on behalf of the applicants appears. The letter reads:

“ You will note that two months have elapsed since the court matter was withdrawn against a promise from your clients to expeditiously resolve the matter.

Please advise when you are available to attend the promised round table conference to finalise the said dispute.”

What is clear is that applicants’ contracts of employment with the 2nd respondent were never terminated by the 2nd respondent. That situation is obviously undesirable. The 2nd respondent ought to have brought finality to the matter since it is the one which had the responsibility to end the contracts. This is said taking into account that even after the matter

had been appealed there was no indication that an effort was made to accept the applicants at the workplace because they indicated that they presented themselves at the workplace but were denied entry. In the circumstances it is not clear as to what else the 2nd respondent expected the applicants to do. Equity demands that there be a solution to any dispute. Thus, in the present matter there must a cut-off date from which the applicants stopped being the 2nd

respondent’s employees.

It is trite that upon loss of employment an employee has a duty to mitigate their loss. This principle was laid down in the case of Ambali v Bata Shoe Company Limited 1999(1) ZLR 417(S)(Ambali). In Ambali the court was dealing with dismissal from employment and the need to mitigate one’s loss. In the present matter the question of dismissal does not arise. However, where an employee is denied entry into the workplace and the employer is not paying the employee any salary, there is need on the part of the employee to look for alternative employment. The 2nd respondent was in clear contempt of an order of the court.

The 2nd respondent in the affidavit deposed to on its behalf criticizes the stance taken by the applicants by taking up alternative employment or being involved in some form of self- employment as a way of mitigating their respective losses. It was submitted that they should have sought reinstatement. The dispute resolution system confirmed that they were the 2nd

respondent’s employees. The question of reinstatement would have arisen had the 2nd respondent terminated their contracts of employment and the court ordered their reinstatement. That is not the position in the present matter. This means that the applicants remained in the 2nd respondent’s employ and were therefore entitled to their salaries and benefits.

The position of the 2nd respondent before this court in the notice of opposition was that the application should be dismissed with costs on the punitive scale. This is clearly contrary to the position which the order of the court shows. The Court Order in its paragraphs 3 and 4 reads thus:

‘3.The 2nd Respondent should pay the employees all their salary arrears and benefits.

4. The 2nd Respondent will bear the applicants’ and the 1st Respondent’s costs.’

Before this Court it was argued on behalf of the applicants that the applicants are claiming their salaries from June 2022 when this Court made its order. It was submitted that the applicants’ contracts of employment with the 2nd respondent were still valid at the time of

approaching the court. This meant that the applicants were entitled to the arrear salaries and benefits. The question of reinstatement therefore does not arise. What also came from the evidence of each of the applicants was that after the labour officer made their determination which this court later confirmed, the efforts to go back to work failed as the 2nd respondent refused to take them back even though they remained under its employ.

While the founding affidavit refers to prospective salaries , it is clear that after the Supreme Court dismissed the 2nd respondent’s appeal the order of the Labour Court remained in force. This means that the applicants remained the 2nd respondent’s employees. The 2nd respondent was obliged to pay the applicants arrear salaries. It chose not to. The applicants therefore remained on its payroll. In the circumstances therefore, as the period of non- payment of salaries continued, the arrears also continued to accrue.

Each of the applicants gave evidence in Court. The first witness was Shelton Chibanda. He was employed by the 2nd respondent as a computer accounts administrator . His contract of employment forms part of the record. That contract was never terminated . The 2nd respondent did not comply with the court order of 22 June 2022.He earned seven hundred United States Dollars(USD700.00) per month. He mitigated his loss by buying and selling some wares in town. Under cross examination he stated that after the court order he and his colleagues wanted to continue working but the 2nd respondent no longer wanted them back. He maintained that he was the still employed by the 2nd respondent. He was therefore claiming what was due to him. He denied failing to render services to the 2nd respondent saying that he tendered his services but the 2nd respondent refused to accept such services.

The next witness was Douglas Zingara. His evidence was much the same as that of the first witness except that he was employed as a cleaner. He mitigated his loss by engaging in cleaning duties at the National Employment Council(NEC).

The next witness was Ranganai Because. He was employed by the 2nd respondent as a driver. His story was much the same as the first two witnesses. He was in the 2nd respondent’s employ for twenty years. He was working at the NEC as a way of mitigating his loss.

The next witness was Cavern Muzondo. He was employed by the 2nd respondent as a computer Account Administrator. Like the others the 2nd respondent denied him employment even after the court had made an order against it. He works as a vendor and sells tomatoes in order to earn a living. He like the others stated that he wanted to continue working for the 2nd

respondent but the employer denied him that opportunity. His contract of employment was never terminated and he therefore remained the 2nd respondent’s employee.

Roseline Hwata was the last witness to testify . Her testimony was to the effect that she was employed by the 2nd respondent as a computer supervisor and she also performed other duties. She confirmed the existence of a contract of employment between herself and the 2nd respondent. She said her salary ranged between USD216.00 and USD700.00 per month. She also stated that she used to get allowances which included housing and transport allowances. That contract was never terminated so her position was that she was still the 2nd respondent’s employee. She also stated that after the court order of June 2022 the 2nd respondent never paid her anything. She tried to look for equivalent employment but failed to secure any. She was therefore working as a hairdresser. Under cross examination , in addition to maintaining her evidence she told the court that the reason why she stopped going to work was because the employer turned her away. She emphasized that she was still employed by the 2nd respondent and the fact that she was not reporting for work at the 2nd respondent’s workplace was not her problem but that of the 2nd respondent.

Before this court it was argued on behalf of the 2nd respondent that the applicants were not entitled to prospective salaries. It was submitted that the Labour Court judgment dated 10th June 2022 was to the effect that the claimants would get arrears accrued up to that date and not beyond . It was submitted that salaries and benefits claimed from July 2022 onwards were not arrears as envisaged by both the ruling of the Labour Officer and the order of the Labour Court. It was submitted under the circumstances that claims from July 2022 onwards amounted to a new dispute. It was submitted that the court should have declined jurisdiction and referred the matter to a labour officer for the labour officer to determine the dispute afresh and if necessary ,the matter would then be referred to arbitration from where an appeal would arise.

One witness gave evidence on behalf of the 2nd respondent. He was one Nunurai Bore (Bore). He is the Chief Designated Agent National Employment for Catering Industry(NEC). His testimony was directed at Douglas Zingara and Ranganai Because, 2nd and 3rd applicants. He stated that the 2nd applicant is currently employed by the NEC as a cleaner while 3rd applicant is employed as a messenger/driver. He did not produce the two applicants’ contracts of employment with the NEC. He also stated that the 3rd applicant was sometime in 2024 awarded a long service award. Under cross examination he indicated that he was not

authorized by the NEC to give evidence on its behalf. Bore told the court that the NEC and 2nd respondent are sister companies and they are housed in the same building.

In Madhatter Minining Co v Marvelous Tapfuma SC51/14 (Madhatter) the Supreme Court held that this court is entitled to use its equitable jurisdiction when resolving labour disputes. In Madhatter the issue for determination was the quantum of damages and the appropriate currency. In the present matter the issue for determination is whether the applicants are entitled to arrear salaries and benefits. The 2nd respondent disowned some of its employees, namely the applicants herein. It did not terminate their contracts of employment. This means that they remained in its employ. The labour officer who dealt with the matter initially found that the applicants were the 2nd respondent’s employees. This court made a similar finding and proceeded to order that the applicants be paid their salaries and the relevant benefits. The 2nd respondent appealed the decision of this court to the Supreme Court. That appeal was dismissed by the consent of the parties. It is instructive to note that the appeal was granted with the consent of the 2nd respondent. It is therefore surprising for the 2nd respondent to resist paying the applicants what it knows is due and owing. Admittedly there were efforts to reach an amicable solution to the dispute. It appears parties failed to agree on the cut-off date. A formula was however created by the parties even though they failed to agree(p92/209).

This matter has been in the system since 2021 when the labour officer made the initial draft ruling. This court made its order on 10 June 2022. The Supreme Court made its order on 2June 2023. In 2023 parties had some discussions. Those discussions reached a dead end.

Meanwhile the applicants remained out of employment. Like any human being they needed to survive. They engaged in various forms of employment. They needed to do so. Thus the 2nd respondent cannot blame them when it is the one that caused the situation. Equally I think the fact that they took measures to mitigate their losses cannot be ignored when the amounts due and owing to them are considered.

The applicants justified their claims as contained in the founding affidavit deposed to by Shelton Chibanda and supported by the other applicants. The contracts of employment simply made offers of employment. Some indicate the applicants’ respective salaries and grades but others do not. They do not indicate the benefits. The applicants based their claims on the applicable Collective Bargaining Agreements (CBAs). The Collective Bargaining

Agreement : Insurance and Pensions Industry Statutory Instruments 21of 2023 and 142 of 2023 respectively form part of the record.

I found the stance adopted on behalf of the 2nd respondent , that is , that the application should be dismissed, to be a cause for concern in circumstances where it consented to dismissal of its appeal. In my view the 2nd respondent accepted that there were amounts due and owing from it to the applicants. In heads of argument submitted on behalf of the 2nd respondent, the question of reinstatement and the failure by the applicants seek reinstatement is addressed. The order of this court did not refer to reinstatement. It considered that the applicants were employees of the 2nd respondent. The question of reinstatement does therefore not arise.

The 2nd respondent criticized the applicants for saying that they continued to be the 2nd

respondent’s employees and yet they had taken up alternative employment. It is not disputed that the applicants took up alternative employment. Meanwhile their contracts of employment with the 2nd respondent were not terminated and the applicants considered themselves the 2nd respondent’s employees which is what the Court said. At the same time, they could not go back to work as they were denied entry by the 2nd respondent. In argument I did not hear argument on behalf of 2nd respondent to challenge the relevance of collective bargaining agreements which were relied on by the applicants. The thrust of argument on behalf of the 2nd respondent was that the applicants were not entitled to any payment.

My understanding of the applicants’ case is that their contracts of employment remained valid since they were not terminated .This position was confirmed by the courts. Alternative employment in their view did not extinguish their contracts with the 2nd respondent. They only worked because they needed to make ends meet.

I find the circumstances of this case unique in the manner that arrear salaries accrued. This Court being a creature of statute is guided by provisions of the Labour Act Chapter 28:01(the Act). S89 of the act provides for the functions and jurisdiction of the Court.

S89(2)(c)(ii) provides that:

(2) In the exercise of its functions, the Labour Court may— (a)…

(i) …

(ii)

iii) …

(iv) …

[Subparagraphs (iii) and (iv) repealed by section 29 of Act 7 of 2005]

(b) …

(c) in the case of an application made in terms of subparagraph (ii) of subsection (7) of section ninety-three, make an order for any of the following or any other appropriate order—

back pay from the time when the dispute or unfair labour practice arose;

in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the Labour Court, adequately compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;’

In the present matter the issue is not one of reinstatement. However, in my respectful view, the fact that the applicants’ contracts of employment were never terminated cannot be wished away. It is therefore failure by the employer to pay what was due to the applicants. In Kuda Madyara v Globe and Phoenix Industries (Pvt) Ltd 2002(2)ZLR 269 (S) the Supreme Court stated that an employee is entitled to back pay and damages. As noted earlier my view is that as long as such contracts were not formally terminated, the salaries continued to accrue. While the contracts were never terminated, the salaries cannot continue to accrue without end. There has to be a cut-off point.

S2A of the Act provides as follows: ‘2A Purpose of Act

The purpose of this Act is to advance social justice and democracy in the workplace by—

giving effect to the fundamental rights of employees provided for under Part II;

…

[Paragraph repealed by section 3 of Act 7 of 2005]

providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

the promotion of fair labour standards;

the promotion of the participation by employees in decisions affecting their interests in the work place;

securing the just, effective and expeditious resolution of disputes and unfair labour practices.’(Emphasis added).

It is clear that this matter has been in the system for a while. This cannot, by any measure, be considered to be an expeditious resolution of the dispute as envisaged by the Act. The 2nd respondent deliberately ignored an order of this court. It exercised its democratic right of appeal. The appeal was dismissed with its consent. From the date that the appeal was dismissed 2nd respondent has not paid applicants their salaries and benefits. Failure to pay them in my view is neither just, nor fair, nor equitable. Such conduct is contrary to the letter and spirit of the Act.

While the present matter is not based on dismissal, the employees need to be compensated for non-payment of salaries which I think can advisedly be equated to loss of employment which forced the applicants to look for alternative employment. It is also clear that the 2nd respondent did not employ any provisions of the Act in order to terminate the applicants’ contracts of employment. They therefore remained its bona fide employees.

The applicants have calculated what they consider to be due and owing from July 2022

,that is a month from the date of the order of this court to April 2024. April 2024 is the month during which the applicants swore to the affidavits in support of the present application. They have therefore worked out a cut-off date.

Their calculations are as follows:

SHELTON CHIBANDA

His monthly salary was US$762.38 .He claims the total of US$14 043.23 as arrear salaries and benefits broken down as follows:

Arrear Salary US$ 9941.52

Housing allowance US$1167

Transport AllowanceUS$789

Bonuses	US$806.51

Annual Leave Days	US$1339.20

DOUGLAS ZINGARA

His monthly salary was US$505.50.He claims a total of US$ 9326.48 as arrear salaries and benefits broken down as follows:

Arrear Salary	US$6062.50

Housing Allowance US$1167

Transport Allowance US$789

Bonuses	US$491.32

Annual Leave Days	US$816.66

RANGARIRAI BECAUSE

His monthly salary was US$598.65. He claims the total of US$11037.26as arrear salaries and benefits broken down as follows:

Arrear Salary	US$7469.17

Housing Allowance	US$1167

Transport Allowance US$789

Bonuses	US$605.94

Annual Leave Days	US$1006.15

ROSELINE HWATA

Her monthly salary was US$762.38 . She claims the total of 14043.23 broken down as follows:

(i)Arrear Salary	US$9941.52 (ii)Housing Allowance	US$1167 (iii)Transport Allowance	US$789 (iv)Bonuses	US$806.51 (v)Annual Leave Days	US$1339.20

CAVERN MUZONDO

His monthly salary was US$762.38. He claims the total of US$14043.23 as arrear salaries and benefits broken down as follows.

Arrear Salary	US$ 9941.52

Housing Allowance	US$1167

Transport Allowance	US$ 789 (iv)Bonuses	US$806.51 (v)Annual Leave Days	US$1339.20

The total claim for the applicants is therefore the sum of the above claims that is:

There have not been any calculations from the 2nd respondent to show what it considered to be a fair offer under the circumstances. Its attitude which I find cannot be condoned appears to be that the applicants were not entitled to any payment. As indicated earlier on, the contracts of employment did not articulate the benefits which the applicants were entitled to. However, since they were NEC- graded the CBAs had the relevant benefits. Further bonus is ordinarily paid at the discretion of the employer. However, the respondent did not comment on the various claims made by the applicants including the claim for bonus. I am therefore guided by what the applicants claimed and accept that this is what they were entitled to.

Having considered argument for and against the claim, I am satisfied that the applicants have established a case against the 2nd respondent, on a balance of probabilities.

The applicants asked for costs on the higher scale. It was submitted that they were unjustly forced to initiate litigation. The attitude on behalf of the 2nd respondent was that it was the applicants who unnecessarily dragged the 2nd respondent to court while discussions were underway therefore the application should be dismissed with costs on the attorney and client scale.

It is clear that had the 2nd respondent complied with the order of the Supreme Court this matter would have long been resolved. The 2nd respondent deliberately chose to ignore the

order of the court . That has to be discouraged in strong terms. In Martin Jongwe v National Foods and Anor SC33/21 the Supreme Court ordered costs on the punitive scale against a litigant who brought a defective application with the knowledge that it was defective. Equally in the present case the 2nd respondent ignored a court order and this resulted in the applicants having to mount the present application. It should be ordered to pay costs on the attorney and client scale.

In the result it is ordered that :

The application for quantification of arrear salaries and benefits be and is hereby granted with costs on the Attorney and Client scale.

The 2nd respondent be and is hereby ordered to pay the applicants the total of sixty-two thousand four hundred and ninety -three United States Dollars and forty -three cents (US$62 493.43) in terms of the break down in paragraph [34] above. Payment maybe made in United States Dollars or in local currency at the rate applicable on the date of payment.

NEMBO ATTORNEYS, APPLICANTS’ LEGAL PRACTITIONERS

G.MACHINGAMBI LEGAL PRACTITIONERS, 2ND RESPONDENT’S LEGAL PRACTITIONERS.