Church of the Province of Central Africa v Pascal Mrewa & 5 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/19/2016
HARARE, 15 OCTOBER 2015 &
22 JANUARY 2016
CASE NO LC/H/724/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/19/2016

HARARE, 15 OCTOBER 2015 &			                   CASE NO LC/H/724/2014

22 JANUARY 2016

In the matter between

CHURCH OF THE PROVINCE OF CENTRAL			APPELLANT

AFRICA

Versus

PASCAL MREWA							1ST RESPONDENT

And

BOTERERA TSONGO						2ND RESPONDENT

And

SHADRECK NYATSURO						3RD RESPONDENT

And

JOSEPH CHIDARIKIRE						4TH RESPONDENT

And

TAWANDA CHABATA						5TH RESPONDENT

And

JOSEPH KUNONGA						6TH RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	R T L Matsika  (Legal Practitioner)

For the Respondents	H Mawema with T Masamba  (Trade Unionists)

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant is the former employer of the respondents who were each employed at different times in different capacities prior to December 2007 at the Cathedral of St Mary and All Saints.

On 21 September 2007, the then bishop of the church for the Province of Central Africa, (“the Church”) Norbert Kunonga and his followers withdrew their membership from the church. He proceeded to form a separate church, the Anglican Church of the Province of Zimbabwe (ACPZ).

Following the secession of Norbert Kunonga and his followers, from the church, the Cathedral Council made a resolution to remain within the Province of Central Africa and not to move to the ACPZ on 12 December 2007. A meeting of all staff of the Cathedral was called on 13 December 2007 at which staff were advised of the decision of Council. Most of the respondents did not attend this meeting despite notice to do so.

Meanwhile, Norbert Kunonga had proceeded to take over properties of the church including the Cathedral as he had forcibly evicted the church from such premises.

It is alleged that the majority of the applicant’s employees stopped reporting for duty at the Cathedral and started reporting at the appellant’s new premises at St Luke’s Greendale. The respondents however continued reporting at the cathedral which was now under the control of the new entity, the Anglican Church for the Province of Zimbabwe. From December 2007 to November 2012, the respondents performed duties under the control of the ACPZ and received their salaries from such entity and not from the appellant.

The two entities, the church and ACPZ, had meanwhile been engrossed in litigation in the High Court which ended up in the Supreme Court regarding control and occupation of properties which included the Cathedral. In the case of The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC 48-2012, the Supreme Court restored the properties in question back to the church. The appellant then evicted the ACPZ and all those occupying the premises though it. It is alleged that the respondents, as the ACPZ’s employees, were removed on that basis.

In January 2013, the respondents lodged a complaint of unfair dismissal, non-payment of November and December 2012 salaries and non-payment of terminal benefits. Following a no settlement certificate, the matter was referred to arbitration on the following terms of reference:

Whether or not the applicants were unlawfully dismissed;

Whether or not the applicants are owed salaries from 2009 to 2013;

Whether or not those who were employed after 2007 are employees of Kunonga Church of the Province of Zimbabwe;

Whether or not those who were employed before 2007 and chose to remain with Kunonga’s church repudiated their contracts of employment; and

Whether or not the diocesan staff should proceed against the Cathedral of St Mary and All Saints.

The arbitrator found inter alia, that the employees employed prior to 2007 were unlawfully dismissed and ordered their reinstatement without loss of salary and benefits from the date of the unlawful dismissal. In the alternative, damages in lieu of reinstatement were ordered.

It is against that award that this appeal is made. The lengthy grounds of appeal raise the following points for my determination:

Whether or not the respondents repudiated their contracts of employment with the Church of the Province of Central Africa by taking up employment with the Anglican Church of the Province of Zimbabwe;

Whether or not the appellant owed any salaries to the respondents for the period December 2007 to November 2012; and

Whether or not the respondents were unfairly dismissed and propriety of their entitlement to reinstatement.

The appeal is opposed and I deal with each issue in turn below.

Repudiation of contract

Mrs Matsika, counsel for the appellant contends that by taking alternative employment with the Anglican Church of the Province of Zimbabwe in December 2007, the respondents repudiated their employment contract with the appellant and effectively terminated their employment relationship.

The conduct of the respondents, of continuing to report for duty at a Cathedral which was under the control of the ACPZ, well knowing that the appellant had been evicted, and receiving a salary from ACPZ, is pointed to as forming the basis for the repudiation. Reference is made to the cases of Myers v Abramson 1952 (3) SA 121 at 123 and Blue Ribbon Foods Limited v Dube N O & Anor 1993 (2) ZLR 146 (S) in support of this argument. Further reference is also made to Maguchu v Lever Brothers (Pvt) Ltd SC 78/2000 and S v Stead 1991 (2) ZLR 54 (S)

The arbitrator’s finding that employees engaged after 2007 were not employees of the appellant but of the ACPZ under Kunonga is said to be non-consistent with the finding that those employed prior to this period, who however chose to be employed under ACPZ, remained employees of the appellant.

In response, it is argued that the appellant had perpetual legal personality and the employees’ status should not be affected by the politics of the day, particularly as bishops would come and go over the years. The respondents claim not to have been advised of the dispute and the new address of their employer as there was no written communication. They further allege no knowledge of the meeting allegedly held to advise staff members of the Cathedral Council decision.

I wish to start off with the disputed facts. The respondents are being economic with the truth by distancing themselves from the events of the secession of the Kunonga faction and the ACPZ. As employees who were closely tied to the unfolding events, they were aware that Bishop Kunonga had withdrawn from the Church of the Province of Central Africa and had formed a new and separate church which had evicted the former church from the Cathedral. The staff meeting minutes of 13 December on record page 30 bear testimony to this. It is clear that respondents elected to align with the Kunonga faction’s ACPZ. Even the term of reference number 4 before the arbitrator speaks of the respondents employed before 2007 as having chosen to remain with Kunonga’s church. Further, these events were widely covered by the press at the relevant time.

The events which unfolded between 21 September 2007 to December 2007 cannot, by any stretch of imagination, be equated to the usual change of leadership of the church which would happen in terms of the Constitution of the Church.

The respondents are correct in asserting that the appellant has perpetual legal persona status and was in existence at the relevant time. The question is however, whether or not the respondents had a continuing employment relationship with the appellant. I do not think so as the appellant did not provide work for the respondents nor remunerate them after December 2007. (See the definition of employer in the Labour Act [Chapter 28:01]. Instead it was the ACPZ which stepped into the role of employer for the respondents.

I find therefore that the respondents made an informed choice of taking up employment with the ACPZ, which was a separate legal entity from the Church of the Province of Central Africa. The Church of the Province of Central Africa v The Diocesan Trustees for The Diocese of Harare SC 48-2012.

I rely on Blue Ribbon Foods Ltd v Dube N O & Anor (supra) to conclude that the word “employer” does not mean “former employer”. It is clear that the respondents ceased to be employees of the appellant when they took up other employment.

Further in Maguchu v Lever Brothers (Pvt) Ltd supra the taking up of alternative employment is taken to be repudiation of the contract of employment.

The respondents are accordingly found to have repudiated their contracts of employment with the appellant when they elected to take up employment with the ACPZ.

Did the appellant owe any salaries to the respondents for the period 2009 to 2013?

The respondents based their claim for underpayment of wages on the basis that the appellant was their employer at the relevant period. It is alleged they were paid wages which were lower than those stipulated in the Collective Bargaining Agreement for the National Employment Council for the Welfare and Educational Institutions.

Having already found that the appellant was not the employer of the respondents for that period on which the claim is based, I rely on the case of Maguchu v Lever Brothers (Pvt) Ltd supra to dismiss this claim. I quote from pages 4 to 5 of the cyclostyled judgment:

“However, by taking alternative employment on 1 January 1996, the appellant repudiated the contract of employment. Thereafter the respondent did not have any obligation to pay salary or other benefits to him.” (my emphasis)

Further in S v Stead supra, it was held that statutory obligations which are attached to an employer cannot be foisted on a former employer. The appellant did not owe any salaries to the respondents for the period 2009 to 2013.

In any event, even if such salaries were owed, only underpayments for the period 16 January 2011 to November 2012 would be claimable due to the operation of section 94 (1) of the Labour Act. The claim was initially made on 16 January 2013. The alleged unfair labour practice would have ceased in November 2012 and was not a continuing one as envisaged in section 94 (2) as the cause of action accrued from month to month. Slomowitz v Veneeniging Town Council 1966 (3) SA 317 (A) at 331.

Whether the respondents were unfairly dismissed and propriety of the order of reinstatement

Having already concluded that the respondents repudiated their contracts of employment with the appellant, in December 2007 when they elected to work for the ACPZ, and that the appellant immediately ceased to be their employer, there were no contracts to be terminated in November 2012.

There was no basis for the conclusion that the respondents had been unfairly dismissed and equally none to order reinstatement.

In Maguchu v Lever Brothers case supra it was stated on p 5:

“Having elected to repudiate the contract of employment … the appellant cannot claim reinstatement.”

Consequently the appeal succeeds in toto. The award of arbitrator Malama Y of 24 July 2014 is set aside in its entirety and is substituted as follows:

´The claimants’ claim is dismissed.”

Wintertons, appellant’ s legal practitioners