Emson K Mushayabasa v Norton Town Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/72/13
HELD AT HARARE 18TH FEBRUARY 2013
CASE NO LC/H/616/05
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/72/13

HELD AT HARARE 18TH FEBRUARY 2013	      CASE NO LC/H/616/05

In the matter between:-

EMSON K MUSHAYABASA				Applicant

And

NORTON TOWN COUNCIL				Respondent

Before The Honourable G Mhuri, Senior President

For Applicant:  Mr S Mushonga (Legal Practitioner)

For Respondent: Mr A Muchadehama (Legal Practitioner)

MHURI, G:

On the 7th October 2005 Arbitrator Chavura issued an award reinstating Applicant without loss of pay and benefits.

Respondent appealed to this Court and on the 31st May 2007 an order by consent was issued on the following terms-

that Respondent reinstates Applicant pending early retirement with full benefits,

that Applicant be on leave pending finalization of his packages/emoluments

that there be no order as to costs.

In July 2008, the same parties approached this Court seeking clarification of its Order of the 31st May 2007.

After a hearing the Court issued another Order dated 17TH July 2008 which reads:-

“The Respondent Council should process early retirement.  If early retirement is not accepted by the Local Authorities Pension Fund, then the Applicant is not retired and remains employed by the Council until dismissed or leaves employment for any reasons.”

Pursuant to this Order, Respondent processed the early retirement papers and forwarded them to the Local Authorities Pension Fund (LAPF).

By a letter dated the 7th October 2008 the Local Authorities Pension Fund Pensions Administration Executive acknowledged Applicant’s retirement.  In the same letter calculations for Applicant’s entitlements were made and a cheque for $2 334.95 comprising the 1/3 commutation and pension arrears for 1 October 2007 to September 2005 was issued.

On the 21st September 2009, Respondent processed other documents for submission to the National Social Security Authority (NSSA) Pension and other Benefits Scheme for processing of Applicant’s entitlements.

It is not denied that Applicant went on early retirement.  It is not denied that he received his entitlements from LAPF.  It is not denied that since 2008 Applicant is a recipient of a monthly pension allowance from LAPF.

This is a clear indication that Applicant retired from Respondent’s employ.

On 15th November 2011 Applicant filed this application for quantification of this Court’s Order LC/H/616/2005 (i.e. 31st May 2007 Order) arguing that Respondent did not comply with item 2 of the Order to wit that Applicant be on leave pending finalization of his packages/emoluments.

Attached to the application is annexure BB2 (Record page 16) titled

APPLICANTS CALCULATIONS OF DUE SALARIES AND RETRENCHMENT PACKAGE FROM FEBRUARY 2009 TO NOVEMBER 2012.

The total is $68 668.00.

On the 23rd January 2013 Applicant filed another supplementary affidavit revisiting his claim now claiming he was forced into early retirement and was constructively dismissed.  He is now claiming over and above salaries, gratuity from 1976 to 1983, salaries from 2007 to November 2012, bonus, legal fees and 145 leave days.

Having considered the submissions by both parties in respect of this application, I find that this application is without merit.

Firstly, contrary to annexure BB2, Applicant was not retrenched, therefore the claim for retrenchment package does not arise.

Secondly, the Order of the 31st May 2007 was an order by consent and it was the Parties who approached the Court for clarification of the Order.  After lengthy submissions and concessions, the Court issued the Order of the 17th July 2008 which Order was then complied with by the Respondent.  Applicant was paid and is receiving his monthly pension allowance since.

The adage that there must be finality to litigation is apt.

If Applicant was not satisfied with the 2nd Order that clarified the 1st Order, it was within his right to appeal.  He did not.  He cannot now seek to rely on the 1st Order and make new claims stating that he was forcibly retired early and that he was constructively dismissed and also make fresh claims over and above the claims he made earlier.  It is unfortunate that Applicant was retired in the Z$ era so even if Applicant’s claim were to be accepted he can only be paid up to date the LAPF accepted Respondent’s papers.  This was in October 2008 when the multi currency regime had not been introduced.  In that regard, Applicant would be entitled to Zimbabwean dollars.

Consequently, this application is dismissed with costs.

Mushonga Mutsvairo – Applicant’s Legal Practitioner

Mbidzo Muchadehama & Makoni – Respondent’s Legal Practitioner