Brenda Garudzo v T K Hove & Partners Legal Practitioners

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/555/16
HELD AT HARARE 8 JULY 2016
CASE NO
JUDGMENT NO LC/H/555/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/555/16

HELD AT HARARE 8 JULY 2016				CASE NO LC/H/LRA/50/16

& 9 SEPTEMBER 2016

BRENDA GARUDZO						Applicant

T K HOVE & PARTNERS LEGAL PRACTITIONERS		Respondent

Before The Honourables Musariri & Maxwell, JJ

Applicant			In person

For Respondent		E Matsanura (Legal Practitioner)

MAXWELL J:

This is an application for the confirmation of a ruling made by the applicant in terms of section 93 (5) of the Labour Act [Chapter 28:01] as amended.  Applicant is a labour officer in the Ministry of Public Service, Labour and Social Services.  On 23 February 2016 applicant made a ruling in the matter between Machaba and the respondent.  Machaba had been employed by the respondent as a legal secretary from 21 December 2010 to October 2015 when the contract of employment was terminated on notice.  Machaba then approached the Ministry of Public Service, Labour and Social Services claiming terminal benefits and outstanding leave days.

Respondent disputed Machaba’s entitlement to leave days.  Respondent also stated that Machaba’s contract of employment had been terminated in May 2011 but she was re-engaged in June 2011.  Applicant awarded Machaba

Salary for 5 days worked in August = $139

Cash in lieu of leave = $2 219

Compensation for loss of employment = $2149

Total  		=  $4507

At the hearing of the matter respondent raised a defence of prescription to part of the claim.  Mr Matsanura stated that the labour officer had no jurisdiction to deal with the claim for the period 2010 to 2011 as it had prescribed in terms of section 94 of the Labour Act [Chapter 28:01].  Section 94 (2) of the said Act states that prescription shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.  In my view Machaba’s case falls within the exception.  I say so on the basis of the fact that she was employed for a continuous period until terminated on notice.  The submission that there was a break in the relationship is not borne out by the record.  Two issues are pertinent.  The first is that the letter of the so called termination of May 2011 indicates that Machaba’s last day at work would be 31 May 2011.  The opposing affidavit states that Machaba had been fired but was reinstated on the grounds of mercy as she had minor children.    Mr Matsanura indicated that she was re-employed in June 2011.  I find that whereas the respondent had intended to terminate the contract of employment, the decision was reversed on the grounds of mercy.  The second issue is that it is on record that Machaba was on leave for two months, December 2012 to 31 January 2013.  As submitted by applicant, since leave days accrue at 2 ½ days per month, by the end of November 2012, she had accrued 60 days meaning that there was no break in the employment relationship.  I therefore find that prescription does not apply in this case.

Respondent disputed Machaba’s entitlement to the 80 days awarded as cash in lieu of leave.  Mr Matsanura submitted that she is entitled to 17 ½ days only.  The submission was not substanted by any record or evidence.  It was only by word of mouth.  On the other hand applicant justified her award on the basis that there is only a record of two months leave.  She further submitted that there was no evidence placed before her that Machaba took any more leave days other than sick leave.  Her award of 80 days can therefore not be faulted.

In terms of Section 12 C (2) of the Labour Act as amended, Machaba is entitled to one month’s salary for every two years of service or the equivalent lesser proportion of one month’s salary for a lesser period of service and compensation for loss of employment.  She worked for a period of four (4) years and seven (7) months.  She was at a salary of $832 per month.  For the four years she is entitled to two months salary, $832 x 2  = $1664

For the seven months she is entitled to 7/24 x $832  = $242

In total she is entitled to $1906 as compensation for loss of employment.  Applicant had erroneously awarded her $2149 as she had calculated seven months out of one year instead of seven months out of two years.  At the hearing of the matter the error was pointed out to her and she conceded her mistake.  The award will be corrected accordingly.

Applicant also awarded 5 days worked in August 2015.  Respondent disputed this on the basis that the five days were paid as part of the notice period as the notice was given to Machaba on 5 August 2015 even though the letter was dated 31 August 2015.  I find therefore that Machaba was given notice on the 5 August 2015.  The award of the 5 days’ pay can therefore not be faulted.

In the final analysis the applicant’s ruling is confirmed with an amendment as to the amount of compensation.  In addition, in terms of section 93 (5a) (b) applicant is entitled to costs of the application.  She is claiming a total of $8. Accordingly respondent is to pay the total costs of $8.

Wherefore it is ordered that

The ruling by the applicant in the matter between Machaba and T K Hove & Partners Legal Practitioners be and is hereby confirmed with an amendment.

Respondent be and is hereby ordered to pay Machaba.

Salary for 5 days (August 2015) $139

Cash in lieu of leave of 80 days $2219

Compensation for loss of employment $1906

Total $4264

The total of $4 264 is to be paid within 30 days of this order.

Respondent be and is hereby ordered to restitute $8 costs of suit within seven days of this order.

………………………….				………………………

MAXWELL J					DATE

……………………….				……………………….   I agree

MUSARIRI J					DATE