Zimbabwe Open University v Stewart Mandiwanza & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/63/25
HARARE, 2 OCTOBER 2024 & 25
CASE NO. LC/H/764/24 and LC/H/785/24
FEBRUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 2 OCTOBER 2024 & 25

JUDGMENT NO. LC/H/63/25

CASE NO. LC/H/764/24 and LC/H/785/24

FEBRUARY 2025

In the matter between: -

ZIMBABWE OPEN UNIVERSITY And

STEWART MANDIWANZA And

NICHOLAS VUMBUNU And

MINISTER OF HIGHER AND TERTIARY EDUCATION

APPLICANT / APPELLANT

1st RESPONDENT

2nd RESPONDENT

3rd RESPONDENT

Before the Honourables G Musariri and L.F Kudya; Judges

For the Appellant

For the Respondent

Tafadzwa Lancelot Mapuranga (Legal Practitioner)

Panashe Eric Chivheye (Legal Practitioner)

KUDYA, J:

On 02 October 2024 two matters LC/H/764/24 and LC/H/785/24 were placed before this court. LC/H/785/24 pertained to grant of interim relief pending appeal. By consent interim relief was granted thus leaving for determination only appeal LC/H/764/24. This judgment therefore addresses only the issues raised by the appeal following the conclusion of the interim relief case by the consent order.

The appeal grounds can be summarized as follows-

1) Arbitrator erred by not finding that the claim for payment of cash in lieu of contact leave had prescribed.

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2) Arbitrator wrongly decided the matter by relying on section 94(3) of the Prescription Act yet the parties had not argued that point.

3) Arbitrator lacked jurisdiction to determine the matter as it was premised on the employer’s acknowledgement of indebtedness to the employees vis contact leave.

4) Arbitrator erred to conclude that employees had applied for contact leave yet there was no evidence to support that.

5) Arbitrator erred by construing the employer’s Human Resources Policy as giving the employees an unfettered contractual right to contact leave yet such was discretionary.

6) Arbitrator erred by not finding that the employees had sought an incompetent remedy for payment of cash in lieu of contact leave yet the contracts between the parties did not have such a clause of cash in lieu of contact leave. In the result the employer prayed that the appeal succeeds and that the arbitrator’s decision be set aside either on the basis that the claim had prescribed hence the arbitrator lacked jurisdiction to determine it or that on the merits the employees had failed to prove their entitlement to contact leave or cash in lieu of the same.

In response to the appeal the employees maintained in summary that: -

1) Arbitrator correctly found that the claim had not prescribed as it only came into being in September 2023 when the employer voiced its unwillingness to pay for the contact leave which it had acknowledged since 2011.

2) Reliance on the Prescription Act and the Labour Act was in order as both Acts spoke to the prescription issue. Besides, arbitrator relied mainly on the Labour Act to determine the prescription issues and both parties argued the point.

3) Arbitrator had the requisite jurisdiction to entertain the claim. Written and oral submissions by the parties showed that the issue was not an acknowledgment of debt as in a liquid document but a contractual obligation which the employer previously acknowledged but was but was now reneging on. Arbitrator and Labour officer both had the requisite jurisdiction to entertain the unfair labour practice where the employer was now reneging on the contact leave contractual arrangement.

4) As regards evidence of contact leave placement, efforts by employees to obtain such was not necessary given the fact that the employer had for all the times cited lack of financial resources for the employees to proceed on contact leave.

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5) Arbitrator correctly concluded that the conditions of service of the employees gave them the right to the contact leave so cumulatively with the Human Resource Policy such a right was established.

6) Arbitrator awarded a competent remedy of cash in lieu of contact leave by using the monetary component of the said leave to arrive at what was due to the employees. In the result the employees prayed that the appeal be dismissed with costs for lack of merit.

The background to the matter is that the employees referred to in this judgment are in appellant’s employment. Their employment contracts have a clause where they are entitled to contact leave after every 2 years of service. For the years 2011,2017,2019 and 2023 for the 1st respondent and for 2011, 2013, 2015, 2019 and 2023 for the 2nd respondent, these employees did not go on contact leave with the employer citing financial challenges. When the contact leave episodes became due the employer confessed its appreciation of the outstanding leave but cited financial constraints. In 2023 when the employees asked about what will happen to the outstanding leave episodes the employer expressed an unwillingness to pay for these. This resulted in the employees approaching the labour officer and later the arbitrator with the claim that they be paid cash in lieu of contact leave.

The employer unsuccessfully raised the plea of prescription. Resultantly the employees succeeded in their claim with the arbitrator awarding each one of them USD26 500 or ZIG equivalent calculated at the rate of USD150 per day for 35 days contact for every phase of such over the period under complaint. The award irked the employer prompting it to appeal to the labour court under the appeal heads already set out above.

The law relating to appeals is settled See Hama v NRZ 1996(1) ZLR664(S) and Nyahondo vs Hokonya and others 1999(1) ZLR457(S)Two critical issues fell for determination in this appeal. Firstly, was the arbitrator correct to rule that the claim had not prescribed and to say the labour officer and him both had jurisdiction to entertain the claim. The 2nd issue is whether the arbitrator was correct to conclude that the employees’ claims had been properly established thus giving rise to him granting the cash in lieu of contact leave which he granted.

Each of the appeal grounds is discussed below: -

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Prescription

Section 94 labour Act sets out that each claim of unfair labour practice should be lodged with the labour officer within 2 years of the breach. In the case at hand, it is fact that the breach was only raised in 2023 yet the breaches dated back to 2011. Employer says if the employees held the view that it was in breach they should have made their claims as and when each episode of unfulfilled contact leave arose. Employees say their point of departure was 2023 when the employer now was reneging on its previous view that it was aware of the outstanding contact leave episodes which sadly had not been fulfilled due to financial constraints. Arbitrator was persuaded by the employees’ reasoning that in their view there was no dispute to refer to a labour officer as all the while until2023 they thought they were of the same mind with the employer that indeed they had contact leave which was due but could not be fulfilled due to financial constraints.

The employer reasoned to the contrary that each contact leave period was a separate claim to have been litigated on when it arose albeit within 2 years of its arising. The simple question needing an answer is: Was it grossly unseasonable for the arbitrator to conclude that the continued engagement on the issue gave rise to a going concern which could not have been upset by prescription as the employees genuinely believed they were with the employer so the only time that the dispute arose was when the employer reneged. The court is of the view that the facts as set out by both parties speak to the fact that both knew that there were these contact leave episodes which were yet to be met. The law is however clear that if each of the episodes needed to be fulfilled then the claim had to be lodged when each episode fell due. On account of the fact that the arbitrator exercised jurisdiction even over the expired periods his determination has to be upset in respect of the expired episodes. Having concluded that the respondent employees could only claim for the periods within two years from the date when they approached the labour officer and the arbitrator it follows that the award has to be set aside for the periods outside the 2 years. For completeness of record the only periods when the employees could validly claim contact leave were therefore from 2021 to 2023 when they lodged their claims. The appeal therefore succeeds to that limited extent.

2. Reliance on prescription Act and not hearing the parties on arguments under that head. This ground is intricately linked with ground 1 already discussed above. The comments made on ground 1 apply to this ground with equal force. It therefore partially succeeds too.

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3.Jurisdiction

The employer argued that employees’ claim was based on a technical acknowledgment of debt by it which is not an issue for determination by the labour officer or the arbitrator. Employees on the other hand maintained that it was not an issue of acknowledgment of debt as such but, simply a contractual issue which the employer acknowledged all the while until it reneged in 2023. A reading of the facts demonstrates clearly that, all that the employees were trying to enforce is what they viewed as their contractual entitlement which was for all time acknowledged by the employer. There was therefore no issue of acknowledgment of debt but simply a contractual issue which the labour officer and arbitrator were properly seized with. The ground being without merit should fail.

3. Evidence for contact leave

It was said that contact leave could not satisfied because there were financial constraints. It therefore became inconsequential whether or not the employees had applied for same. The ground therefore does not advance the appeal in any way. It should thus be dismissed.

4. Human resources policy and extent of contact leave right.

Under this head the employer says the contact leave right was a limited right and not absolute The court agrees that indeed the right was dependent on availability of funds but, the absolute or limited nature of the right could not detract from the fact that such leave was being claimed as of right. It mattered not what the extent of the right of was. The right still remained an extant right as per the contracts and as per the Human Resources Policy The complaint was that the right had been breached whether in a wider or narrower sense. The ground being without merit should also fail.

5. Remedy

Employer says the remedy did not lie in cash in lieu of contact leave. Worst case scenario would have been for an order mandating it to let the employees go on contact leave to satisfy the outstanding periods. The employees say leave had USD150 per day cash component so such has to be awarded to them. Arbitrator agreed with the employees that he could quantify the entitlement easily by multiplying USD150 by the contact periods. In keeping with reasoning that the leave was a right exercisable by the employees the court finds no fault with

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the award based on the USD 150 per day per diem entitlements over the contact leave period This ground being therefore partially succeeds to the extent of excluding the expired period of the leave

IT IS ORDERED THAT: -

Appeal grounds being partially merited they be and hereby succeed to a limited extent. The arbitral decision ordering the payment of USD26 500 for each of the respondents be and is hereby set aside and substituted with an order that respondent employees be paid contact leave allowances only for the period between September 2021 and September 2023 when they took their matter up with the labour officer and the arbitrator. Each respondent employee is to be paid USD 150 multiplied by 35 days totaling USD 5250(five thousand two hundred and fifty dollars ) or ZIG equivalent at the rate obtaining on the date of payment.

Kudya J-------------------------------------Musariri J _________________I AGREE

Wintertons

Rubaya and Chatambudza

Appellant’s Legal Practitioners

Respondent’s Legal Practitioners

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