T. Munyanyi (Labour Officer) N.O v Gibson Mangwiro & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/51/2021
HARARE, 26 NOVEMBER, 2020
CASE NO. LC/H/LRA/43/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/51/2021

HARARE, 26 NOVEMBER, 2020		     CASE NO. LC/H/LRA/43/20

AND 4 JUNE, 2021

In the matter between:

T. MUNYANYI (LABOUR OFFICER) N.O				Applicant

Versus

GIBSON MANGWIRO							1st Respondent

CHRISTOPHER CHISANGO						2nd Respondent

EDWIN MUBATARIPI							3rd Respondent

ZIMBABWE ANTI CORRUPTION COMMISSION			4th Respondent

Before The Honourables Chivizhe & Kachambwa JJ;

For Applicant:				In Person (Labour Officer)

For 1st to 3rd Respondents:	A. Chambati (Chambati, Mataka & Makonese Attorneys)

For 4th Respondent:		K. Magorimbo

KACHAMBWA J:

Judgment

1.	 The Application

This is an application by a labour officer for confirmation of his ruling on a matter between the respondents. It is in terms of section 93 (5a) (a) and (b) of the Labour Act Chapter 28:01 (the Act).

2.	The facts for the ruling

The 1st to the 3rd respondents are employees of the 4th respondent. (employees and employer). The employer charged and convicted the employees of misconduct and imposed a penalty of dismissal. The employees applied for a review. The application was successful. The court set aside the conviction and ordered a status quo ante. Before the conviction the employees were on suspension with salary and benefits.

The employer did not pay the employees their salaries neither did he appeal the order of the court. The employees approached the Labour officer for redress.

3.	Objection of the employer

The employer objected to the procedure followed by the employees on the

ground that the employees were seeking to execute an order of the Labour Court

for which a labour officer did not have jurisdiction. The employer did not oppose

the quantum of the claim but argued that the employees should have reported for duty. No work no pay.

4.	Position of the employees

The employees’ objection was that the Labour officer had jurisdiction because this was a new matter and not an execution of the court’s order. The court’s order was self-executing in view of the fact that the employees were on suspension. All that the employer was required to do is to start paying the salaries. That not having been done the employees are suing for the salaries. They are not seeking to execute the Labour court’s orders.

5.	Ruling by the Labour Officer

The Labour officer dismissed the employer’s opposition on the grounds

that the employees were back at work but suspended with pay and benefits. That it was up to the employer to call them back to work or reconvene the hearings and finalise them. The labour officer awarded the quantum’s as had been served on the employer and for which there was no objection.

6.	Employer’s Position before this Court

The employer insists that the labour officer did not have jurisdiction as

this was in fact execution of the labour Court’s judgment. It insisted that

such judgment can only be executed by way of registering it in terms of

section 92B of the Act. The employer further argued that the employees

were under suspension pending disciplinary hearing and therefore were

not entitled to any of the amounts claimed. Further they had not returned

to work and no work no pay. The employer also argued that the manner

of computation of the claim was not clear as the claim said the salaries

and benefits are to be paid from the date of judgment to date.

In the hearing the employer raised a further point to the effect that the award did not make the statutory deductions and was therefore not the correct quantum payable.

7.	Employees’ Position

The employees insisted that the labour officer had jurisdiction. They also later argued that the amount claimed was from net salary and benefits and was therefore not subject to any further deductions (as reflected by the record.)

8.	Analysis of Award

The issue of jurisdiction should not arise more so in view of the fact that the employer has not appealed the Labour court’s judgment. The employer is simply trying to be obstructive by raising technicalities. The employees are back at work but on suspension with full salary and benefits. The employer did not object to that ruling as there is no appeal. It is the employer who suspended the employees on full salary and benefits. It is up to the employer to lift the suspension if it wants the employees to report for duty. They cannot be expected to report for duty when the status quo ante is suspension. Therefore the labour officer’s position is correct on this point. The case of Zimbabwe United Passenger Company v Beauilar Mashinye is apposite. At page 6 of the cyclostyled judgment the court says that;

“The clear position of the law appears to be that upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise”.

Therefore the employees are just claiming their salaries and benefits as persons that are back at work.

On the quantum the first point to note is that the employer did not object to it before the labour officer. It is true that the first time that the matter is being heard in the legal sense is at this time of application for confirmation. We refer to Isoquant Investments (Private) Limited t/a Zimoco v  Memory Darikwa CCZ 6/20 at pages 27-8 of the cyclostyled judgment.

“Conciliation does not contemplate a hearing as envisaged in adjudication…………………………………………………………………………………………………..

A perusal of s 93 (5b) of the Act is reflective of the fact that a hearing commences when the matter goes for confirmation before the Labour Court. It is not coincidental that the term “hearing” appears for the first time in the same section in terms of which the matter is brought to the Labour Court for confirmation” per Malaba, CJ.

However it is the duty of the parties to equip the conciliator with all the information necessary to assist in resolving the matters brought before him / her. That said, there may not be grounds for objecting to any new evidence being canvassed before the court. Nevertheless the issue of deductions is not correct as the record shows that the quantum is calculated from payslips of which the deductions are already made.

On the issue of further claims being made this is inevitable as long as the employer owes the employees. It is up to the employer to pay and be up to date. The employer has not shown any good reason as to why it should not pay. The employees were suspended on full pay and benefits. It is up to the employer to hear the cases if it still wishes to. As things stand it appears as though the employer is just being obstructive and flexing its muscles to punish the poor employees.

9.	Verdict	In the circumstances the Labour officer’s ruling must be confirmed. It is accordingly ordered as follows;

1.	The application for confirmation be and is hereby granted.

2.	The claim of none payment up to November 2018 be and is hereby

upheld.

3.	The 4th respondent be and is hereby ordered to pay the following amounts;

3.1	to Gibson Mangwiro $44 419-00

3.2	to Christopher Chisango $82 740-00

3.3	to Edwin Mubataripi $82 740-00

4.	4th respondent pays the costs of the application.

CHIVIZHE J:………………………………………………………

KACHAMBWA J:…………………………………………………

Chambati Mataka & Makonese Attorneys At Law - Applicant’s Legal Practitioners

Mutamangira & Associates	-	4th Respondent’s Legal Practitioners