Automotive & Allied Workers Union of Zimbabwe v Stephen Maambire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/356/2016
HARARE, 11 MAY 2016 &
CASE NO LC/H/500/2015
27 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/356/2016

HARARE, 11 MAY 2016 &				                     CASE NO LC/H/500/2015

27 MAY 2016

In the matter between

AUTOMOTIVE & ALLIED WORKERS					APPELLANT

UNION OF ZIMBABWE

Versus

STEPHEN MAAMBIRE							RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	W Murambidza  (Trade Unionist)

The Respondent in Person

MUZOFA J:

The respondent was, until October 2012 employed by the appellant. The circumstances under which the respondent left employment are in dispute.

The appellant alleged that following some misconduct by the respondent the parties discussed the issues and mutually agreed to terminate the contract. The agreement was not reduced into writing.

The respondent’s version was that there was no such agreement. Following accusations of misconduct the General Secretary of the appellant verbally dismissed him in the absence of a disciplinary hearing.

The respondent referred the dispute to a labour officer and subsequently the matter was referred to an arbitrator.

The arbitrator found that the respondent had been unlawfully dismissed and ordered his reinstatement without loss of salary and benefits.

The appellant has approached this court on appeal. The three grounds of appeal set out on the notice of appeal raise three issues whether there was an employment relationship between the parties, whether the respondent was lawfully dismissed and the competency of reinstatement order in view of the fact that the respondent had secured alternative employment.

The second ground of appeal was eventually abandoned by the appellant.

Two issues therefore remain for determination.

According to the appellant the parties mutually terminated the contract albeit verbally in October 2012. This was disputed by the respondent.

Section 12B deals with the dismissal of employees. It provides:

“(2)	An employee is unfairly dismissed—

If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment Code, or

In the absence of an employment Code, the employer shall comply with the model Code made in terms of section 101 (a).”

In casu the appellant failed to satisfy the requirements as set out in section 12B 2(a) and (b) of the Act.

The appellant instead relied on mutual termination. No proof was placed before the arbitrator to show that there was a verbal agreement between the parties. In the absence of evidence it is difficult to impugn the arbitrator’s findings. This was a factual finding and an appeal court can only interfere with a finding of fact where there has been a gross misdirection on the facts.

It was not alleged in this case that there was a gross misdirection. I find no misdirection on the arbitrator in relation to the dismissal.

The first ground of appeal is therefore dismissed.

The third ground of appeal relate to the order of reinstatement without loss of salary and benefits.

According to the appellant the respondent joined the Electronics, Communications, Radio and TV Manufacturing and Allied Industry Workers Union.

At an annual congress of the said union the respondent was elected into the National Executive as a General Secretary. The appellant produced the memorandum authored by the President of the Union advising of the new office bearers, who were elected on 17 November 2012.

The appellant also produced copies of receipts issued by the respondent for money received on behalf of the said union from December 2012 to 2013. For the appellant this was evidence that the respondent was employed at that Union.

The evidence was not disputed by the respondent.

The appellant also produced copies of payslips showing that the respondent was paid his salary and benefits for three months post the termination of the contract. This was said to be cash in lieu of notice. The respondent did not deny that he received his December 2012, January 2013 and February 2013 salaries despite his “dismissal”.

If the respondent had secured alternative employment as of November 2012 the order for reinstatement would be incompetent.

What is clear though is that the respondent was not paid all his terminal benefits, for instance the February 2013 payslip showed that the respondent had accrued sixty leave days. I did not hear the appellant claim that this was paid. The second ground of appeal succeeds.

From the foregoing the following order is made:

The appeal be and is hereby upheld.

The arbitral award is amended to the following extent:

“The respondent is ordered to pay damages in lieu of reinstatement, parties may agree on damages failure of which either party can approach the arbitrator for quantification.”