ZECO Holdings (Pvt) Limited V Rolland SIN Corbett AND 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/362/2013 10 JUNE 2013 & 02 AUGUST 2013
TH
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/362/2013 10TH JUNE 2013 & 02 AUGUST 2013	     	 CASE NO LC/ORD/H/431/2012

In the matter between:-

ZECO HOLDINGS (PVT) LIMITED					Appellant

And

ROLLAND SIN CORBETT AND 3 OTHERS				Respondents

Before The Honourable L Matanda – Moyo, President

For Appellant		C. Warara (Legal Practitioner)

For Respondents		R. Mukozho (Legal Practitioner)

MATANDA – MOYO, L:

This is an appeal against the Arbitrator’s findings that;

The Respondents were unfairly and unlawfully dismissed by the Appellant from employment.

The Respondents be reinstated and paid their backpay up to date of dismissal.

Reinstatement would not be a viable option considering the level of disagreement that exists between the parties.

(i) That Rolland S.H Corbett be paid a total of $133 800.00 being damages in lieu of reinstatement.

(ii) That Jason J. Corbett be paid a total sum of $80 640.00 being damages in lieu of reinstatement

(iii) That Heath C. Corbett be paid a total sum of $91 440.00 being damages in lieu of reinstatement

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(iv) That Virginia A. Corbett be paid a total sum of $61 930.00 being damages in lieu of reinstatement

Appellant pay costs on client-attorney scale.

Appellant appealed to this court on the following grounds;

THAT:

‘1.  The Arbitrator erred in fact and at law in concluding that 1st and 2nd Respondents were unlawfully and unfairly dismisses as the letter directing them to regularise their employment status and in the company’s best interest, was lawful.  They ought to have compiled with it in terms of Clause 3.3.3 of their contracts.

2. The Arbitrator misdirected himself in finding that 3rd and 4th Respondents were also unfairly dismissed without any evidence to that effect placed before him.

3. That the Arbitrator grossly erred in making a finding of fact that Respondents were entitled to be paid motor vehicle expenses when there was no basis for that fact.

4. that the Arbitrator grossly erred in fact and at law in quantifying damages for the Respondents without evidence having been led in respect of quantum of damages.

5. That the Arbitrator grossly misdirected himself in finding that damages calculated at 40 and 30 months salaries respectively are reasonable in the current economic environment obtaining in the country and in particular the Appellant’s business.

6. The Arbitrator erred in failing to take notice that the written contracts entered between the parties were denominated in Zimbabwean dollars and that there had not been any renewal or ratification of benefits to be made in United Stated dollars except the salary which the Respondents were earning.

7.That the Arbitrator erred in fact and in law when concluding in one breath that there was a status quo accepted by Respondents that their salaries were paid in terms of their pay slip and then turn around and award them benefits that were not in their February payslips.  By refusing to stick to the payslips produced by the Respondents, the Arbitrator was making a new contract of employment for the parties, which is unlawful.  The Arbitrator ought to have made a finding that the Respondents terminated their contracts on 12 April 2009, which amounts to interruption of service.

8. That the Arbitrator grossly erred in overlooking the fact that damages payable are contractual hence an award of clothing, fuel, security, sports and of cellphone allowances are misplaced.”

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Respondents on the other hand noted a counter appeal on the following grounds;

“1. That the Arbitrator erred in law and grossly misdirected himself by failing to appreciate that contractual entitlements are legally due and may not be washed away.  In particular the Arbitrator erred in omitting to award the following:

Gratuity

Relocation allowance

Disturbance allowance

13th cheque

Performance incentive bonus and

Service of a driver (for Rolland S.H. Corbett only)

2. The Arbitrator erred in law and grossly misdirected himself and failed to appreciate that there were legally applicable salary grades for the Appellants as a result he came up with an unjustified quantum of damages.”

Respondents prayed for an order to be paid terminal benefits and entitlements in the sum of $2 432 930.00 plus interest plus cost on attorney –client scale.

Appellant argued that the Arbitrator quantified damages without affording Appellants the opportunity to make submissions on the same.  The Arbitrator’s findings on quantum were made without evidence having been led.  As a result the Arbitrator made fundamental errors in his quantification.  I agree with Appellant’s submissions.  Quantification involves evidence and proof of earnings and proof of capacity to pay by the employer.  Such evidence was never canvassed by the Arbitrator.  The evidence before the Arbitrator on quantification was in sufficient for the Arbitrator to make an informed ruling.  The Arbitrator ought to have called further documentary and oral evidence on quantum.  The Arbitrator made a fundamental error in quantifying the claims without adequate evidence.  I have no choice but to quash the Arbitrator’s findings on quantification and order a rehearing before the same Arbitrator after oral evidence is led.

On the issue of unlawful dismissal it is clear that the Respondents were not dismissed in terms of the law.  The Arbitrator’s findings with regard unfair

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dismissal cannot be faulted in any way.  1st and 2nd Respondents were summarily dismissed by the Board through a letter dated 17 March 2011 on page 200 of the record.  Part of such letter read;

“ the resolution which is attached is to the effect that no shareholder and Board member shall hold the substantive position as an employee of the company.  You are therefore directed to cease holding the substantive position of Chief Executive Officer that Jason Corbett ceases to hold the position of Managing Director and that you both attend at the offices of the Chairman of ZECO and deal with all outstanding issues arising herein.”

The above dismissal was not in terms of the contracts of employment signed between the parties.  Such dismissal was also not in accordance with the provisions of the Labour Act.  The argument by the Appellant that the Respondents opted to terminate their contracts of employment has not been supported by any evidence.  1ST and 2nd Respondents were clearly unlawfully dismissed.

Appellant submitted that there was no proof before the Arbitrator that 3rd and 4th Respondents were unlawfully dismissed.  The Arbitrator therefore erred in law in concluding that 3rd and 4th Respondents were unlawfully dismissed without evidence.  I agree with the submissions by the Appellant that 3rd and 4th Respondents never testified before the Arbitrator and that there is no proof that 3rd and 4th Respondents were dismissed from employment.  It is the 1st Respondent who is said to have been told by Appellant’s Chairman that no Corbett was to set foot at Appellant’s premises.  There is no direct communication to that effect to 3rd and 4th Respondents. However this is an issue which requires evidence to be led before the Arbitrator.  The Arbitrator erred when he concluded the issue without calling evidence.  The question of the unfair dismissal of 3rd and 4th Respondents should be reheard before the Arbitrator after allowing evidence.

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Accordingly

The Arbitrator’s decision with regard the unlawful dismissal of 1st and 2nd Respondents be and is hereby upheld.

The Arbitrator’s decision on the unlawful dismissal of 3rd and 4th Respondents be and is hereby set aside.  The issue is remitted to the Arbitrator for a hearing.

The Arbitrator’s decision on quantum of damages be and is hereby set aside.

The Arbitrator is directed to hear evidence on quantification before making a determination.

The counter appeal by the Respondents is dismissed to allow the Arbitrator to rehear the matter on quantification

Each party to bear its own costs.

Warara and Associates- Appellant’s Legal Practitioners

Sinyoro and Partners- Respondent’s Legal Practitioners