Dadirai Juwao v Kudakwashe Primary School SDA

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/45/16
HELD AT HARARE
14TH JANUARY 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/45/16

HELD AT HARARE 14TH JANUARY 2016			CASE NO LC/H/458/15

& 5TH FEBRUARY 2016

In the matter between:

DADIRAI JUWAO						Appellant

And

KUDAKWASHE PRIMARY SCHOOL SDA			Respondent

Before The Honourable E Muchawa, Judge

For Appellant			Ndota Austin (Trade Unionist)

For Respondent		Mangoma Shame (ZSDACEA)

MUCHAWA, J:

This is an appeal against an arbitral award.

The appellant was employed by the respondent as an early childhood development (ECD) teacher on 7 February 2005, on a contract without limit of time.

The respondent, whose operations are regulated by the Ministry of Education Sport and Culture (as it was then), received a Circular No 12 of 2005 in August 2005 which set the need for establishment of standards to be met in the provision of early childhood development by schools.

As a quality assurance measure, paragraph 3.3 provided as follows;

“ECD centres or classes are expected to operate on a teacher to pupil ratio of 1:20.  Such classes should be manned by appropriately qualified teachers as they graduate from Colleges of Education.  Meanwhile para professionals will continue to be engaged.  They will be paid allowances as in the past.  Only those with relevant ECD qualifications can be put on the School Details Establishment Table (DET) and earn a full teacher’s salary.”

In keeping with circular 12 of 2005, government started deploying qualified ECD teachers from 14 January 2015.  Respondent received its qualified teacher in May 2014.  Appellant was duly advised of this development in a meeting of 20 May 2014.

It is clear from the record that respondent offered a typist position to appellant but she did not have the requisite “O” Level passes and typing knowledge.  She declined the offer of a grounds woman post too.

On 3 June 2014 the respondent gave the appellant a notice of termination of employment in which she was offered three months’ salary as cash in lieu of notice, cash in lieu  of leave and gratuity.

The appellant proceeded to lodge a complaint of an alleged unlawful termination of employment on 16 July 2014.  As the matter remained unresolved, it was referred to arbitration on 16 September 2014.

In an apparent attempt to settle the matter without going through arbitration, the respondent made a revised offer of terminal benefits of $2 306.00 up from the initial offer of $1 598.80.

The appellant signed this offer in apparent acceptance on the date of offer, on 16 September 2014.

In what seems to have been a change of heart, the appellant wrote to respondent on 18 September 2014 rejecting the offered terminal benefits as a mockery and opting for arbitration to proceed.

The arbitrator found that the appellant’s contract of employment had been lawfully terminated and ordered payment of the amount of $2 306.00 as offered.

Aggrieved, the appellant has filed this appeal which essentially raises three issues for my determination.  These are;

Whether or not the termination of the contract of employment was lawful in the circumstances, regard being had to;

was circular No 12 of 2005 binding on respondent?

was termination on notice lawful?

Whether the signing by the appellant of the letter offering terminal benefits constituted acceptance of termination of employment.

Propriety of the terminal benefits awarded.

I deal with each of these issues in turn below.

Whether the termination of the contract of employment was lawful

Effect of circular No 12 of 2005

It is appellant’s submission that the respondent’s school development

association is a body corporate established in terms of Statutory Instrument 187 of 1992 and it is capable of suing and being sued in its own name.  The employment relationship between the parties is said to have fallen for regulation under the Labour Act [Chapter 28:01] not Statutory Instrument 105 of 2005.

The respondent’s position is that it was obliged to adhere to the provisions of circular 12 of 2005 as its operations are regulated by the Ministry of Education as set out in S.I. 379 of 1998 which is the Education (School Development Associations) (Government Schools) Regulations 1998.

The appellant did not explain the relevance of the Statutory Instruments cited.  S.I. 379 of 1998 in outlining the functions and duties of school development associations in section 6 (e) and (f) shows that in hiring of teachers or other non academic staff, these should be suitably qualified and  their engagement should be approved by the Secretary of the Ministry.

Circular 12 of 2005 sets out the approved qualifications of an ECD teacher.  The respondent is therefore bound to employ only ECD teachers who are graduates of colleges of education from the date of their deployment.

In my view there can be no question that the Ministry of Education is responsible for quality assurance in schools and that the circular in question was binding on respondent and it unfortunately resulted in appellant becoming redundant.

ii)	Termination on Notice

The appellant questions the alleged termination on notice as unlawful.  It is argued that since the contract was terminated for operational reasons, the employer should have retrenched her in terms of section 12 C of the Labour Act instead of merely giving three months notice as prescribed under section 12 (4) of the labour Act.

The arbitrator relied on the case of Don Nyamande & Anor  v Zuva Petroleum LC/H/195/14 to accept termination on notice in terms of section 12 (4) of the Labour Act.  That position has since been confirmed by the Supreme Court in Nyamande & Anor v Zuva Petroleum (Pvt) Ltd SC 43/15.  The court held that section 12 (4) governs the time periods that apply when employment is being terminated on notice and that the section obviously exists to regulate the right to terminate on notice otherwise there would be no reason for the section to exist to regulate a non-existent right.

I therefore find no reason to depart from the arbitrator’s findings.  Appellant was not qualified to continue to teach an ECD class and had become excess staff once an appropriately qualified member came on board.  Appellant  could have upgraded herself by acquiring the requisite qualifications but had not done so.

The respondent was right to terminate on notice and these circumstances do no fall within retrenchment scenarios as envisaged in section 12 D of the Labour Act which include major changes in production, programmes, organisation or technology.  Rather, they relate to the employee’s own disqualification to continue in employment.

Whether the signing by the appellant of the letter offering terminal benefits constituted acceptance of termination of employment

The appellant submitted that even though she signed the letter of 16 September 2014 which offered terminal benefits in the amount of $2 306.00, this did not constitute acceptance of termination of employment.

Reference is made to the letter of 18 September 2014 in which she writes and stated as follows;

“We therefore write to advise you that the proposed terminal benefits a clear mockery an unacceptable.” (sic)

Appellants adds that the arbitration process should be allowed to proceed instead of the respondent’s attempt at settlement.

The respondent argues that there was mutual agreement to terminate the contract of employment and this was duly reduced to writing as required in the case of Choga v Johnson’s Motor Transport (Pvt) Ltd 1998 (2) ZLR 56 (H) and duly signed by both parties.

The respondent relies on the letter of 16 September 2014 as the mutual agreement to terminate employment.

The record however shows that the appellant’s employment was terminated on 3 June 2014 in a letter written by the SDA Chairman and Secretary.  The letter reads; “Dear Juwao

RE:  Termination of Contract

I would like, on behalf of SDA Head and parents of Kudakwashe, to thank you for the services you rendered to our children at a critical time when there were no professional ECD teachers.  This year in May the Government gave us Government trained ECD teacher to fill you position.  On a said note I regret to notify you that your contract is terminated as from 4 June 2014.  The SDA shall pay your terminal benefits as follows:

3 months salary notice pay		$840.00

I month salary leave pay		  280.00

9 years x 19% of current pay		  478.80

Total				          $1598.80

We shall contact you at the end of this month for payment of your benefits.”

The letter written on 16 September 2014 simply dealt with the quantum of terminal benefits and revised these to $2 306.00 and advised that these would be transferred into the appellant’s CABS account.  This is what the appellant signed together with a Workers Committee representative.

I find therefore that in casu the contract of employment was not terminated by mutual agreement but on notice on 3 June 2014.

In the giving of notice, there is no need for acceptance, so as to make the giving of notice legal.  In Rustenburg Town Council v Minister of Labour & Ors 1942 TPD 220,

MURRAY J dealt with the effect of a notice of termination of a contract of employment.  At p 224, the learned judge said

“The giving of notice is an unilateral act: it requires no acceptance thereof or concurrence therein by the party receiving notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it.  If so, it seems to me to follow that notice once given is final, and cannot be withdrawn except obviously by consent ---“

This means therefore that no legal effect can be attributed to the appellant’s signing of the letter offering revised terminal benefits in respect to the termination of employment itself.

Propriety of terminal benefits awarded

The appellant submits that the arbitrator erred in awarding the amount of $2 306 as terminal benefits made up of

Gratuity in the amount of $576.00

Cash in lieu of notice in the amount of $1 011.00

Wage shortfalls of $719.00

It is argued that the respondent was negotiating in bad faith and did not pay the

amount offered.

Respondent argues that the appellant was paid what was due to her and she signed in acceptance of the amount and should not question the amount awarded.

The appellant did not indicate to me what else she expected to be paid which she was entitled to.

I have had to rely on section 13 of the Labour Act which deals with wages and benefits upon termination of employment.

I note that the award included benefits with respect to outstanding vacation and notice period and gratuity.  Nothing else has been alleged as owing.  Gratuity has been calculated in terms of the relevant regulations and appellant has not challenged the rate at which these were calculated.  Wage shortfalls have been included too.

In the circumstances, there is no basis on which to query the terminal benefits awarded, which respondent should pay.

Consequently, the appeal be and is dismissed for lack of merit.