Taurai Jasi v Richwood Sports Club

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/717/14
HELD AT HARARE 29TH SEPTEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/717/14

HELD AT HARARE 29TH SEPTEMBER 2014 		CASE NO LC/H/284/14

& 24TH OCTOBER 2014

TAURAI JASI							Appellant

RICHWOOD SPORTS CLUB				Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr G Sithole, Attorney

For Respondent		Mr A Gurira, Attorney

MUSARIRI, J:

Appellant appealed to this Court against an arbitration award made in favour of respondent.  The award dismissed appellant’s claim of unfair dismissal by respondent.  The basis of the award was that respondent, having alienated its business to a third party, appellant had sued the wrong party.  Appellant’s case was that there was no transfer of an undertaking.

Alternatively appellant argued that he was entitled to recourse against the retiring employer in terms of the Labour Act [Chapter 28:01] (hereafter called the Act).  Filed of record are various documents setting out the transactions between the relevant players.  Firstly there is the agreement of sale of “Richwood kitchen”.  The agreement spelt out that,

“2.	The kitchen will be sold to the buyer as a going concern.”

Then there is a memorandum dated 26 May 2012 from the General Manager to all employees.

It declared that,

“Please note that the kitchen has been sold to new owners.  They will start operations on the 1 June 2012.

All kitchen staff will be transferred to the new owners.

Regards.”

The two documents show an intention to alienate an undertaking or part thereof to a new owner.  This was confirmed by the new owner’s statement dated 7 September 2012 where she admitted,

“I took over the running of Richwood Sports Club kitchen on 13 June 2012...”

However she sought to dissociate herself from the dispute by declaring that,

“I was given an option to carry on with them (employees), if I wanted to, with new contracts or to let them go.  I feel that he should also have addressed the employees about their terminal benefits.  I feel strongly that those benefits surely cannot be paid by myself in this regard.”

Despite her denial of liability, the new owner clearly admitted taking over the employees on the 13 June 2012.

Ordinarily an employee in these circumstances should enforce his rights under the employment contract against the new owner.  However respondent argued that the position is now determined by the provisions of section 16 (2)  of the Act which provide that

“(2)	Nothing in subsection (1) shall be deemed –

(a)....

(b)....

(c) 	to affect the rights of employees  concerned which they could have enforced 		against the person who employed them immediately before the transfer,

and such rights may be enforced against the employer or the person to whom the undertaking has been transferred or against both such persons at any time prior to, on or after the transfer.”

(The underlining is for emphasis.)

The underlined excerpt from the Act clearly shows that the rights which can be enforced against the retiring employer are those that that arose before

the transfer.  The dismissal in casu arose after the transfer.  It is the new employer who believed, rightly or wrongly, that she could dispense with the employees’ service at the end of June 2012.

Accordingly I agree with the arbitrator that appellant sued the wrong party.  Whatever rights he has should be enforced against the new employer.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E