Gracious Rutendo Chirenda N.O. v Norman Takawira & Zimbabwe Red Cross Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LCH231/23
HELD AT HARARE 5 JUNE 2023
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE				JUDGMENT NO. LCH231/23

HELD AT HARARE 5 JUNE 2023					CASE NO. LC/H/239/23

AND 27 JULY 2023

IN THE MATTER BETWEEN:-

GRACIOUS RUTENDO CHIRENDA N.O.					APPLICANT

AND

NORMAN TAKAWIRA							FIRST RESPONDENT

ZIMBABWE RED CROSS SOCIETY					SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

No Appearance for Applicant

For First Respondent					Mr. W. Magaya

For Second Respondent				Mr. C. Warara

MURASI J:

This is an application for confirmation of a draft ruling in terms of section 93 of the Labour Act, (Chapter 28:01).

The common cause facts are that the First Respondent was employed by the Second Respondent as a project manager for Mashonaland Province. Parties signed a contract to this effect which was supposed to expire in December 2019. Second Respondent later assigned other duties to First Respondent in Muzarabani. A contract to this effect was signed which was supposed to expire in April 2020. At the expiration of the latter contract no communication was made between the parties in written. It is however not disputed that First Respondent went back to Mashonaland East where he had been working before the ‘Muzarabani assignment’. This is confirmed by various emails which were produced before Applicant in evidence.

Subsequent developments in July 2020 led to the matter being brought before the Applicant. Second Respondent wrote to First Respondent indicating that he was out of contract and was supposed to surrender items which he was using at the workplace. The First Respondent took the matter to the Labour Office and the matter was assigned to the Applicant for determination. I should mention at this point that First Respondent made several inconsistent claims before the Applicant. In her ruling, Applicant dismissed the claims for permanent employment, legitimate expectation and retrenchment package. Applicant however upheld the claims for unlawful termination of employment and non-payment of salaries. She proceeded to order Second Respondent to pay a total sum of USD 13 849-72 and ZWL 1595-00 and 1000 litres of fuel. This is the order that Applicant has brought to this Court for confirmation. I should also add at this juncture that both the First and Second Respondents are unhappy with this outcome and do not support the confirmation of the draft ruling for different reasons.

The Applicant did appear on the date of the hearing. Parties were however agreed that the matter could proceed in her absence.

In submissions, Mr. Warara stated that what was in issue was whether the contract was tacitly relocated as this did not come out from the determination by the Applicant. This issue would clearly determine whether the subsequent order made by the Applicant was correct. Mr. Warara did not dispute the fact that the Second Respondent continued to be given work after April 2020 as shown by the various emails that were produced in evidence. He also took issue with the finding of payments that were deemed due to the Second Respondent by the Applicant. He gave examples of payments in May 2020 which were not taken into account by the Applicant in her computation of what was due to Second Respondent as non-payment of salaries. He also argued that there was no termination of contract as it was incorrectly presumed by the Applicant that there was a contract between the parties.

Mr. Magaya, for the Second Respondent, submitted that it was evident that Second Respondent had continued to work as Provincial Manager for Mashonaland East after the ‘Muzarabani assignment’. He stated that this was shown by the various emails giving him instructions to attend meetings on behalf of the First Respondent which work was not related to the ‘Muzarabani assignment’ but to Mashonaland East Province. He further submitted that in the event, as this ‘contract’ had been unlawfully terminated, Second Respondent was entitled to damages equal to the unexpired portion of that contract as it was clear that it had been tacitly relocated.

A reading of the record shows that Second Respondent’s claims before the Applicant were clearly inconsistent. First Respondent claimed that his contract with Second Respondent had mutated to a contract without limit of time. He also claimed for a retrenchment package whilst claiming that he was entitled to be re-engaged and that another person had been engaged in his stead, thus claiming legitimate expectation. These claims were inconsistent with each other arising from a single employment situation. Applicant did not help matters. What the Applicant needed to determine was whether there a contract of contract of employment subsisting between the parties in order to make the finding that there was an unlawful termination of contract.

That there was no signed contract between the parties after April 2020 is common cause. I have stated elsewhere in this judgment that there is no dispute that Second Respondent continued to be given work after April 2020. It has also been admitted that Second Respondent paid some monies to First Respondent in May 2020. Applicant made the finding that this was payment for services rendered as an employee. So what duties was Second Respondent paying for? The evidence is that First Respondent had gone back to previous ‘work station’ as Provincial Manager. He was performing the duties of Provincial Manager. He was in his previous employment capacity. The letter of July 2020 from the employer requested the employee to surrender all equipment related to the duties that he was carrying out. This is the first time after April 2020 that this was announced. It is my view that the employee resumed his duties as Provincial Manager after April 2020. The employer continued to recognize this as the employer continued to assign duties to the employee in that capacity as Provincial Manager. In May 2020, the employer paid the employee for this service. This was a tacit relocation of the previous contract between the parties. The employer seems to argue against this position. However the employer has not stated what the employee’s status with the employer was between May 2020 and July 2020 when the employer purportedly terminated the employment contract.

The issue of what then is due to the employee in terms of damages is problematic having regard to the fact that the Applicant did not have the parties address her on the issue of mitigation of damages which is a critical aspect in such a determination. As far as the figures themselves are concerned, the Applicant makes the following statement in the draft ruling:

“Amounts claimed by the Claimant and those acknowledged by the respondent after October 2019 are different hence I used the amount that was agreed on the contract of employment which was USD 1750. Since the parties failed to find each other during conciliation proceedings, I have no other alternative than to marry the law with the facts in determining the matter.”

The Applicant therefore ‘plucked’ figures from the air as these did not come from the parties addressing her in terms of the damages that the parties considered due to the employee. This cannot be correct. It is thus view that the parties should be given an opportunity to address on the issue of mitigation of damages and what amounts are due to the employee as non-payment of wages.

In the result, the Court makes the following Order:

The application for confirmation of the draft ruling is granted.

The draft ruling of Gracious Rutendo Chirendo N.O. is confirmed with the following amendment:

“a. The claim for unlawful termination of the relocated fixed term contract is hereby granted.

b. The Claimant shall be entitled to damages for the unexpired term of the contract.”

Parties are hereby ordered to file submissions in respect of mitigation of damages and non-payment of salaries within ten (10) days from the date of this Order.

The Registrar is hereby directed to thereafter set down the matter for hearing at the next available date.

Each party to meet its own costs.

Coghlan, Welsh & Guest-		First Respondent’s legal practitioners

Warara & Associates-			Second Respondent’s legal practitioners.