Teecherz Furnishers v Monica Musvosvi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/180/14
HELD AT HARARE 24 FEBRUARY 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/180/14

HELD AT HARARE 24 FEBRUARY 2014			CASE NO LC/H/689/11

& 28TH MARCH 2014

In the matter between:-

TEECHERZ FURNISHERS				Appellant

And

MONICA MUSVOSVI				Respondent

Before The Honourable E Makamure, Judge

For Appellant		Mr S Mugabe (Human Resources Manager)

For Respondent		Mr Z Makone (Legal Practitioner)

MAKAMURE, J:

This is a matter in which the respondent was employed by the appellant.  In terms of the contract binding the two parties, during the probation period either party could give two weeks’ notice of termination of the contract.  At the end of the probation period of three months, the appellant did not confirm the respondent as a permanent employee.    In a letter dated 28 April 2011 the appellant gave the respondent two weeks’ notice to terminate the employment as required by the contract.  This is also in keeping with the provisions of Section 12 (4) (d) of the Labour Act [Chapter 28:01] (The Act).  The respondent duly accepted the termination of the  contract.  She also brought to the attention of her employer, the appellant, what was owed her in benefits.  This was in addition to what sheexpected as terminal benefits (P20).  This was on 11 May 2011.  On 26 May 2011 respondent lodged a complaint for unfair termination of contract and non-payment of terminal benefits with the Ministry of Public Service Labour and Social Welfare (The Ministry).

On 13 June 2011 the employer obliged and paid Respondent what was due and outstanding.  The respondent acknowledged receipt of such payment (p18).She did not retract her complaint with the Ministry even though she had been paid.

The matter was therefore referred to arbitration after parties failed to settle at conciliation.  The Arbitrator correctly found that the employer had observed the terms of the contract and that it had also paid out outstanding salaries and benefits.  The Learned Arbitrator also referred to the terms of the National Code of Conduct Statutory Instrument 15 of 2006.  The Learned Arbitrator then proceeded to make a finding that the appellant had not adequately counselled the respondent in the areas where she was not performing well before it dismissed the respondent.  That finding was based on the case ofKwangwari v Commercial Bank of Zimbabwe HH 79/03 where the High Court stated that

“Before dismissal is embarked upon, the general principle is that the employee should be timeously informed of his deficiency, be told how to rectify it and be given a reasonable opportunity to improve before any action is taken.”

Having taken the above stance the Learned Arbitrator took the view that even though the appellant had observed the provisions of the Act and of the contract of employment, it had not done enough and the Learned Arbitrator was

“convinced that the termination was not fair given that no proper assessment		was done therefore complainant has to be compensated.”

The Learned Arbitrator then ordered that the respondent be paid the equivalent of four (4) months’ salary as compensation for the unfair termination.  The appellant was aggrieved by that decision and appealed to this Court.  The appellant’s grief lies in that there is no principle of law supporting an award of four months salary as compensation for unfair termination and that the contract was terminated in terms of the provisions of the Act.   Further the appellant proved that the respondent secured alternative employment within thirty (30) days of leaving its employ.

It is trite that an appeal on damages is a finding on facts and therefore not appealable.  However where there isamisdirectionas to the law applied in arriving at the damages an appeal court may interfere (See Leopard Rock Hotel (Pvt) Ltd v vanBeek2000 (1) ZLR 251 (S).  In casu the respondent was awarded compensation which was equivalent to 4 months’ salary.  In the Kwangwari case (above) the Honourable Judge foundno unfairness in dismissal where the person was on probation and had failed to meet the employer’s expectations.  The same principle applies with equal force in the present matter.

I am therefore of the respectful view that the Learned Arbitrator misdirected themselves as to the applicable law. The appellant fairly dismissed the respondent.  There was no need for compensation and there is no legal basis for such compensation. In the circumstances I find that there is merit in the appeal.  The respondent’s employment was fairly terminated.  All outstanding salaries and benefits were paid to the respondent.  The appellant does not owe the respondent anything.

In the result it is ordered that the appeal be and is hereby granted.

Each party shall bear its own costs.

Coglan, Welsh & Guest, Respondent’s Legal Practitioners