ENR ZIM Resources (Pvt) LTD V Minesh Bhika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO. LC/H/393/2025
CASE NO. LC/H/274/24
01 AUGUST 2025
AND 17 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE HARARE 01AUGUST 2025

JUDGMENT NO. LC/H/393/2025 CASE NO.	LC/H/274/24

AND 17 OCTOBER 2025

ENR ZIM RESOURCES (PVT) LTD	APPELLANT

AND

MINESH BHIKA	RESPONDENT

Before the Honourable Chivizhe, Judge:

For the Appellant	Miss L Khumalo

For the Respondent	Mr M Chizhande

CHIVIZHE, J:

This matter was placed before me as an appeal filed in terms of section 92D of the Labour Act [Chapter 28:01] (“the Labour Act”). The appeal is against the determination of Designated Agent, Tawanda Marisa N.O, dated 19 February 2024.

BACKGROUND FACTS

The Respondent, Minesh Bhika, was employed by the Appellant as a Personal Assistant to the Director on the basis of a contract without a fixed duration. The contract commenced in January 2023. The employment relationship was terminated in April 2023, prompting the Respondent to lodge a claim of unlawful termination of contract with the Designated Agent of the National Employment Council for the Mining Industry. The claim was later amended to read as alleged non-payment of notice pay in terms of section 12(4) of the Labour Act [Chapter 28:01]. Relying on this provision the Respondent contended that he was entitled to three months’ notice. His monthly salary being USD$1 000, he was thus claiming a total of

USD$3 000 as notice pay. It was his submission that he had neither been given notice nor paid the sum due. He however admitted receiving his “full and final settlement of his salary” as evidenced by Annexure A’

In a determination handed down on 19 February 2024, the Designated Agent, after considering the submissions of both parties and the relevant law, concluded that the Appellant owed the Respondent unpaid notice pay, leave days, and compensation for loss of employment. The basis of his finding was that the evidence tendered by the Appellant in the form of the expense voucher(Annexure A) was insufficient for him to conclude that there had been a final settlement of the employee terminal benefits. The payment voucher clearly referred to payment of salaries and did not refer in any way to terminal benefits. He also found that he could not make a finding of waiver of the right to notice pay based on the same evidence. In his final award he directed the Appellant to pay Respondent three months’ notice pay, he however could not direct payment of leave days and compensation for loss of employment as the claims were not specific claims i.e. they were not sounding in money. The order directed the Appellant to pay the Respondent USD$3 000, or the ZWL equivalent at the prevailing Reserve Bank of Zimbabwe interbank rate, within 14 days of receipt of the determination.

Dissatisfied, the Appellant noted an appeal under reference LC/H/274/24. At the hearing on 14 May 2024, the Appellant raised a preliminary point that the Respondent had filed a fatally defective Notice of Response. The court upheld the preliminary point, granted the appeal and set aside the determination of the Designated Agent, substituting it with an order dismissing the Respondent’s claim.

Subsequently, the Respondent filed a composite application seeking condonation to rectify the defective Notice of Response as well as rescission of the default order granted by the court on 14 May 2024. In a judgment delivered on 1 July 2025 (Judgment Reference LC/H//H/ 235/25), the court granted the application, allowing condonation and rescission of the default judgment. Leave was granted to the Respondent to rectify the Notice of Response. The court further ordered that the appeal proceed to be heard and determined on the merits.

GROUNDS OF APPEAL

The Appellant challenges the determination on the following three grounds:

The Designated Agent erred at law having found that it was common cause that the employment contract was terminated by mutual consent of the parties, he contradicted himself in further finding that the expense payment voucher did not amount to the mutual separation agreement.

The Designated Agent erred in failing to find that the notice pay was fully paid as per the expense payment voucher.

The Designated Agent erred at law in holding that the expense voucher was not a contract because there were no terms of reference and that it was not signed by both parties when an expense voucher is a ticket case which requires neither terms of reference nor signatures of both parties.

RELIEF

In relief the Appellant prays that:

The appeal be and is hereby allowed with costs.

The decision by the Designated Agent Tawanda Marisa N.O dated 19th February 2024 be and is hereby set aside and substituted with the following determination:

“The Applicant’s claim for unpaid notice pay be and is hereby dismissed.”

APPELLANT’S SUBMISSIONS

The core of the appeal according to the Appellant rests on a contradictory finding made by the Designate agent in his award.

Firstly, the Appellant contends that the Designated Agent made an irreconcilable error. The Designated Agent initially found, as recorded on page 7 of the record, that it was “common cause that the employment contract had been terminated by mutual consent of the parties”. The Appellant accepts this finding and notes that the Respondent has not appealed it, rendering it a binding and conclusive fact of the case.

The Appellant contends that the Designated Agent having made this initial finding then proceeded to reject the very terms of that mutual agreement when he found that the very same expense payment voucher was not sufficient proof of the termination agreement between the parties, that there was need for more evidence such as the signatures of both parties. The Appellant submits that once a mutual termination was established, the Designated Agent’s role was to uphold the terms the parties had agreed upon, not to question or impose new conditions. This, the Appellant contends, creates a direct contradiction between the Designated Agent's initial factual finding and the final relief granted, which they argue cannot stand on appeal.

The Appellant’s second ground challenges the Designated Agent's dismissal of the expense payment voucher as proof of full and final settlement of the Respondent’s terminal benefits. The Appellant contends that the standard of proof in labour matters is on a balance of probabilities and not on proof beyond a reasonable doubt which is a criminal standard. By

producing a voucher clearly marked “Salary up to 14th of April 2023 (Full and Final Settlement)” signed by the Respondent on the Appellant's letterhead, the Appellant argues that it successfully discharged the burden of proof in this case. The evidence clearly showed the parties had agreed to payment of the amount of USD$500 as reflected on the voucher in full and final settlement of what the Appellant owed the Respondent. The Respondent had proceeded to append his signature to the document. He automatically became bound by his signature. The Appellant has referred to authorities in ZFC Limited v Tapiwa Joel Furusa SC 15/18 (at page 9), where the Supreme Court of Zimbabwe held that a party to a contract is bound by his signature, whether or not he has read or understood the contents of the document. It is Appellant submission that the Designated Agent therefore erred in rejecting this evidence without any contrary evidence from the Respondent.

Furthermore, the Appellant submits that the Designated Agent improperly attempted to rewrite the parties’ contract. In support of this position, the Appellant cited Ashanti Goldfields Zimbabwe Limited v Jafat Mdala SC 60-17, wherein it was held that courts must interpret and uphold the intentions of the parties rather than create new obligations. The Appellant submits that by requiring additional signatures or different terms, the Designated Agent essentially engaged in a “frolic of his own”.

Finally, the Appellant contends that the unsigned voucher constitutes a valid “ticket case” contract, a recognized legal concept whereby a document presented by one party and accepted by another binds the parties to its terms. The Respondent had also clearly accepted payment, then after utilizing the funds he turned around to make a further claim, a situation which has been frowned upon by courts in this jurisdiction. Reference was made to Gauntlet Security Services v Hlabangani SC 15/04.

At the hearing, Ms Khumalo for the Appellant, informed the Court that she would largely abide by the submissions filed of record, which served to explain that the Appellant was appealing the decision of the Designated Agent on the grounds that the decision was fundamentally flawed due to contradictory findings and errors in law.

In light of these arguments, the Appellant prayer is that the appeal succeeds and that the Designated Agent’s decision be set aside on the grounds of contradictory findings, misapplication of legal principles relating to mutual agreements, burden of standard of proof and sanctity of contract.

RESPONDENT’S SUBMISSIONS

The Respondent opposes the appeal in its entirety, contending that all grounds are without merit and that the Designated Agent’s core findings were correct. The Respondent

position is that he had initially referred two claims before the Designated Agent, firstly for arrear salary in the amount of USD$500 and secondly, for Notice pay. He had abandoned the first claim on the basis that he had been paid the arrear salary through the expense voucher. The only claim that therefore remained before the designated agent was for Notice pay which claim was based on section 12(4) of the Labour Act. The Respondent further submission is that the Appellant before the Designated Agent did not deny that it had not paid notice pay. It instead sought to argue that the expense voucher was proof of full and final settlement of all terminal benefits due to the Respondent. This however was not the correct position. In specific response to the first ground the Respondent contends that the Designated Agent may have erred in drawing the initial finding that there was a mutual termination of contract. He however made the correct finding at the end of his award that based on the evidence of the expense voucher there was no termination by mutual consent as was suggested by the Appellant. The Respondent submits that having arrived at the correct conclusion there was no need for him to have appealed against the initial finding by the Designated Agent that there was a mutual termination.

The Respondent further argues, that, as correctly found by the Designated Agent, the expense voucher only serves to prove that there was mutual settlement for arrear salaries for the month of April 2023 and does not, in any way, constitute a settlement for the separate and distinct claim of notice pay. The document itself clearly made reference to arrear salaries it did not refer to notice pay, so the acknowledgement of receipt must be taken for what it is and not what Appellant would want it to be. The Respondent submits that the Appellant has sought to mislead the court by conflating the two separate and distinct obligations.

The Respondent maintains that the second ground is equally without merit. He bases his entitlement to notice pay on a clear legal foundation, citing Section 12(4) of the Labour Act. As an employee on an indefinite-term contract, he contends that he was legally entitled to a three-month notice period. His monthly salary being USD$1 000, he was entitled to claim notice pay in the total sum of USD3 000.00. He maintains that the voucher produced by the Appellant, which clearly specifies payment for “salary up to the 14th of April 2023,” relates only to earned arrear salary, it also serves as overwhelming evidence that the separate and distinct claim for notice pay was never settled. The Respondent supports the Designated Agent’s finding that the expense voucher did not constitute a valid contract settling the notice pay dispute and considers that finding to be neither “outrageous nor in defiance of common sense.”

In oral submissions, Mr Chizhande for the Respondent, reiterated that the voucher’s purpose was limited to settling the April 2023 salary and contained no reference to notice pay, notice pay however was the claim that had been placed before the Designated Agent. Accordingly, the Appellant failed to prove that the notice pay obligation was ever fulfilled.

For this reason, the Respondent contends that the appeal is without merit. The Respondent maintains that he is only seeking what is legally due to him and therefore prays that the appeal be dismissed in its entirety with costs, submitting that the Appellant has failed to demonstrate any error in the Designated Agent’s decision.

In her reply, Ms Khumalo submitted that the import of the words “in full and final settlement” in the expense voucher is that the Respondent essentially waived his rights to any further claims against the Appellant. He had clearly appended his signature to the document in acceptance of this position. He was bound to the signature he had drawn. The fact that he had abandoned his initial claim before the Designated Agent was neither here nor there, it did not alter the fact that the parties had agreed that the payment made was in full and final settlement of all terminal benefits. The court was urged to find that the finding by the Designated Agent was in defiance of logic due the contradictions therein.

EVALUATION

The Appellant’s entire case, both before the Designated Agent and on appeal, is predicated on a fundamental mischaracterization of the Respondent’s claim. The Appellant persistently conflated ‘the claim for notice pay’ with a ‘claim for arrear wages’. It is however apparent from a reading of the record that the Respondent explicitly abandoned his claim for arrear salaries for April 2023 before the Designated Agent and therefore the only claim pursued and granted was for payment in lieu of notice pursuant to section 12(4) of the Labour Act.

The principal issues for determination are

Whether the Designated Agent erred in finding that the termination of employment was not governed by a valid mutual separation agreement.

Whether the Designated Agent erred in failing to find that payment of notice pay had been settled through an expense payment voucher, and

Whether the Designated Agent erred in law by holding that the expense voucher was not a binding contract.

I shall proceed to address these seriatim

Whether the Designated Agent erred in finding that the termination was not governed by a valid mutual separation agreement

The Appellant’s primary contention is that the Designated Agent made a contradictory finding, first acknowledging that the employment relationship ended by mutual consent, yet later refusing to accept the expense payment voucher as evidence of that mutual termination agreement.

It is indeed correct that the Designated Agent recorded that the employment contract had been terminated by mutual consent. This is apparent from the first line in the analysis part of his award where he found as follows;

“1. It is common cause that, Applicant’s employment contract was terminated by mutual consent of the parties. However, none of the parties presented a copy of the mutual agreement which shows the terms of the agreement.”

It is clear that the Designated Agent whilst accepting there was mutual termination however proceeded to qualify his statement when he noted that he had not been favoured with the exact terms of that agreement. This he necessarily had to state as it is the position that a mere cessation of employment or an acknowledgment that both parties discussed termination does not, in law, amount to a mutual termination agreement unless the mutual intention to settle all rights and obligations is clearly established.

Whilst it is indeed apparent that the Labour Act [Chapter 28:01] does not define “mutual termination”, the principle is however recognised in case law. In ZESA v Dera 1998

(1) ZLR 500 (S), the Supreme Court emphasized that a valid mutual separation must be “clear, unequivocal, and based on consensus as to the consequences of termination.” Similarly, in Zimasco (Pvt) Ltd v Marikano SC 10/14, the Court held that “the mere fact that an employee accepts payment at the end of employment does not, in itself, establish a mutual separation unless the parties have expressly settled all obligations.”

In the present matter, the only document relied upon by the appellant as proof of the mutual separation is the expense payment voucher which is clearly marked “salary up to 14 April 2023 (full and final settlement).” It is important to note that the document does not itself record any agreement of mutual separation, it also does not outline any terms of the alleged separation. The Appellant has hinged its case largely on the use of the phrase “in full and final settlement”. Appellant has also relied on the fact that the Respondent appended his signature to the document as presented to justify a mutual termination. Lastly but most importantly the Appellant has relied on the finding as made by the Designated Agent.

The import and meaning of the phrase “in full and final settlement” in labour matters is well settled in this jurisdiction. It refers to a legally binding agreement in which an employee accepts a final payment package in exchange for waiving any and all future claims against an employer. See Unilever Zimbabwe (pvt) Ltd vs Matsheza SC 16 OF 2017. It is also the position that for it to be binding certain conditions have to be met, such as the issue of consent and voluntariness. The factual circumstances in this case militate against the court finding as argued by the Appellant that Respondent waived his rights to any further claims. This is clear as the phrase as used in the expense voucher cannot be read in isolation. It is clear that the phrase in this case was preceded by the words “salary up to 14 April 2023”. The acknowledgement by the Respondent in this case cannot therefore by any stretch of imagination be deemed to be an acknowledgement of all terminal benefits where the document clearly refers to salary alone. The argument clearly cannot be sustained.

It is also clear that there was no contradictory finding made as the Designated Agent did qualify his initial finding. He stated that been had not been shown the termination agreement. Against that background he proceeded in his award to justify why he believed that on the basis of the evidence as tendered being the expense voucher he was unable to conclude that there had been a termination by mutual agreement. From the court reading of the award it is clear that it is the Appellant which is seeking to benefit from the perceived erroneous initial finding by the Designated Agent. There is a need, however, if the court is to accept the argument by the Appellant, to interrogate from the onset as to what was the issue before the Designated Agent. The record shows that the remaining issue was of Notice pay. It would clearly not make logic therefore for the Designated to have found that there was a mutual termination of agreement and settlement of all claims then proceed to determine the issue of outstanding notice pay. The only logical reason as to why he had proceeded to determine the matter and find that the Respondent was entitled to the Notice pay is that he believed there had been no mutual termination and settlement of all benefits. He simply did not accept the submission by the Appellant that the settlement of arrear salaries via the expense voucher translated to settlement of all the terminal benefits in particular notice pay.

The Appellant has also clearly sought to hide behind the caveat subscripto principle by arguing that the Respondent did append his signature to the voucher payment and he is bound by his signature. Whilst the document clearly indicates that it was signed by the Respondent, as correctly contended by him, his signature was appended in acknowledgement of receipt of the arrear salary and not for notice pay. The court‘s finding is that his signature on the voucher clearly cannot be taken as evidence of his acceptance of a mutual termination and settlement

of all benefits in the absence of any express terms of such termination. The Designated Agent was clearly correct in finding that there was no mutual separation agreement in this case. The Designated Agent applied the correct legal principles and arrived at a conclusion consistent with established authority.

Whether the Designated Agent erred in failing to find that notice pay had been settled through the expense payment voucher

The appellant further argued that the voucher constituted proof that the employee received full and final settlement, including notice pay. The court is inclined to agree with the Respondent’s position that the voucher cannot be accepted as proof of full and final payment of terminal benefits, where, the voucher is expressly limited to “salary up to 14 April 2023.” It contains no mention of notice pay, terminal benefits, or mutual separation.

The law is settled that notice pay is a distinct legal entitlement which arises by operation of Section 12(4)(a) of the Labour Act. Subsection 4(a) stipulates that where a contract of employment is terminated on notice, an employee on an indefinite contract is entitled to three months’ notice or payment in lieu thereof. The court also notes the broader legislative and judicial context. Following the landmark Supreme Court decision in Nyamande & Another v Zuva Petroleum SC 43/15, the Labour Amendment Act, 2015 was introduced to regulate notice terminations and provide for statutory compensation under Section 12C of the Labour Act,

The exception to notice pay is only when the employee expressly waives this right in writing, unless such is not done the obligation to pay notice remains. The Appellant in this case produced no written waiver from the Respondent. In Chirasasa & Ors v Nhamo N.O. & Anor 2003 (2) ZLR 353 (S), the Supreme Court held that a statutory entitlement cannot be deemed waived in the absence of clear, informed consent.

The requirement of clear, written waiver or settlement is not a mere procedural formality but a substantive safeguard designed to prevent employers from disguising terminations as consensual arrangements without settling statutory entitlements. The same principle applies herein, the Respondent’s entitlement to notice pay could not be extinguished by implication or by a general payment voucher lacking specific reference to notice obligations.

Consequently, the court finds that the Designated Agent was justified in concluding that the Respondent had not been paid notice pay. The Designated Agent also correctly applied the evidentiary standard of “a balance of probabilities” in the circumstances of this case. He found that the Appellant had failed to discharge the onus of proving payment of notice pay, it

had also failed to prove waiver of his entitlement to notice pay which is a statutory requirement.

.

Whether the Designated Agent erred in holding that the expense voucher was not a binding contract

The Appellant’s final argument was that the expense voucher constituted a valid “ticket case” contract binding the parties, and therefore the Designated Agent erred in rejecting it as a contract, an agreement or a deed of settlement. The issue arises as a result of the Designated Agent finding under paragraph 3 of his analysis where he noted as follows;

“3. Evidence submitted by Respondent is clearly insufficient to substantiate that indeed there was a full and final settlement of Applicant’s terminal benefits. The case law cited by the Respondent supra is not only misplaced but totally irrelevant in the matter beforehand. The payment voucher cannot be misconstrued as a contract, agreement or a deed of settlement because it does not capture the terms of reference moreover it does not carry the signatures of both parties as proof that both minds met.”

The Appellant submission is misplaced. A “ticket case,” as understood in contract law, refers to circumstances where a party accepts standard contractual terms printed on a ticket or receipt (see Parker v South Eastern Railway Co (1877) 2 CPD 416). It does not apply to informal payment vouchers in employment disputes. The concept is wholly inapplicable in the employment context under Zimbabwean Labour law, where employment contracts and separations are governed by clear statutory provisions not by general commercial law doctrines. Moreover, for a document to constitute a valid contract, there must be offer, acceptance,

and mutual intention to create legal obligations. The voucher in question was not signed by both parties and lacked any indication of agreed terms regarding termination or waiver of any statutory benefits.

It is important to note that informal or administrative documents, such as expense vouchers, cannot replace formal separation agreements in law. Employers being legally represented should be enlightened on the need to ensure that any mutual termination or settlement of claims is reduced to writing, signed by both parties, and clearly stipulates which rights are being waived or settled. Failure to do so will result in the statutory entitlements remaining enforceable.

The Designated Agent therefore acted correctly in rejecting it as a binding contract. His reasoning was neither arbitrary nor inconsistent with legal principles. It is the court’s considered view that termination on notice remains permissible for permanent employees, provided the employer pays the minimum statutory compensation package, including notice pay and additional payments for completed years of service. On that basis the court finds the appeal devoid of merit.

In

DISPOSITION

Accordingly, the appeal be and is hereby dismissed.

The determination of the Designated Agent, Tawanda Marisa, handed down on 19 February 2024 is reinstated in its entirety.

The applicant is ordered to pay the respondent (Minesh Bhika) the sum of USD3,

000.00 (or its Zimbabwean Dollar equivalent at the prevailing interbank rate on the date of payment).

The Appellant shall bear the Respondent’s costs.