J.V. Mateko v Syrus Mastara and Tobacco Processors Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/223/2023
HARARE, 26 JULY, 2022
CASE NO. LC/H/640/21
AND 19 JULY, 2023
In the matter between: -
J.V. MATEKO
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 26 JULY, 2022
AND 19 JULY, 2023

In the matter between: -

J.V. MATEKO
VS.

SYRUS MASTARA
AND

Tobacco Processors Zimbabwe (PVT) Ltd.
Before the Honourable B.T Chivizhe: Judge

For Applicant: Mr F. Mabhena (Labour Officer)
For 1st Respondent: Mrs M.S. Musimbe (Legal Practitioner) with
For 2nd Respondent: Mr F. Mahere (Legal Practitioner)

CHIVIZHE, J:

The delay in the handing down of the judgment is sincerely regretted.

This is an application for confirmation of a draft ruling handed down by the Applicant, a Labour Officer on 28 October 2021. The application is premised on Section 93(5a) (5b) of the Labour Act [Cap 28:01]. The application is supported by 2nd Respondent and opposed by 1st Respondent. 1st Respondent is praying for the confirmation of the draft ruling subject to amendments of the draft ruling. This is as envisaged under the same provisions of the Labour Act [Cap 28:01].

BACKGROUND FACTS

JUDGEMENT NO. LC/H/223/2023


The material background facts to the matter are as follows. The $1^{st}$ Respondent on 5 May 2021, referred to Applicant a claim for unfair dismissal. This was based on allegations that he had been verbally dismissed by $2^{nd}$ Respondent’s General Manager. The Applicant submitted before Applicant that he had been employed as Operations Compliance Manager. He had worked for $2^{nd}$ Respondent for more than 34 years. He was due to retire in November 2020 after attaining the age of 65 years. He was however verbally terminated on 30 April 2020. Applicant was therefore claiming an unfair termination as the $2^{nd}$ Respondent had not followed the legal procedures to effect the termination. $1^{st}$ Respondent was therefore claiming his terminal benefits which included 3 months’ notice pay, compensation for loss of employment and damages in lieu of reinstatement. The $1^{st}$ Respondent however submitted that reinstatement was no longer an option as he had obtained alternative employment within a month of leaving the $2^{nd}$ Respondent’s employment. In total he was claiming;

(a) 3 months’ notice pay – US$16 500  
(b) Damages for loss of employment for the seven (7) months premature retirement Employment - USD$38 500.00  
(c) Package – USD$93 500.00 calculated at the rate of one month salary for every two years before on the 34 years he had served

The $2^{nd}$ Respondent in response denied the allegations of an unfair dismissal. It was submitted that $1^{st}$ Respondent had been lawfully terminated as the General Manager was acting on behalf of the $2^{nd}$ Respondent. $2^{nd}$ Respondent further submitted $1^{st}$ Respondent had been paid all his terminal benefits following the lawful termination. $1^{st}$ Respondent had also obtained alternative employment soon after leaving $2^{nd}$ Respondent’s employment therefore he did not suffer any losses. $2^{nd}$ Respondent dismissed the claim for notice pay as the $1^{st}$ Respondent had been employed soon after leaving employment.

$1^{st}$ Respondent could only be paid compensation for the period between his last date of employment and the date he was engaged by his new employer i.e. Northern Tobacco. $2^{nd}$ Respondent also dismissed the claim for compensation for loss of employment as misplaced in the circumstances as $1^{st}$ Respondent was not retrenched but was released on 30 April 2020 when he was due for retirement in November 2020. $2^{nd}$ Respondent also submitted that claimant was paid all his statutory benefits and his pension benefits. It was $2^{nd}$ Respondent’s prayer for the claim to be dismissed.

The Labour Officer in her ruling made several critical findings. She found that $1^{st}$ Respondent had been unfairly dismissed. This conclusion was reached after analysing provisions of **Section 12B (1)** and (2) of the **Labour Act [Cap 28:01]**. Secondly, she found that $1^{st}$ Respondent was entitled to compensation for loss due to premature termination of employment. Thirdly, she found that $1^{st}$ Respondent having found an alternative job immediately did not suffer any loss/prejudice. He was therefore, as submitted by $2^{nd}$ Respondent before her, not entitled to claim compensation for loss of employment in the circumstances. Fourthly, she found that although reinstatement is the primary remedy when an employee is unfairly dismissed, in this case it was no longer tenable in view of the fact that 1st Respondent had obtained alternative employment. His damages therefore were to be calculated on the basis of the period it would have taken him to mitigate his losses in this case as he had immediately found a job his claim should fall away. Fifthly, she found that his claim for 3 months’ notice pay was not a valid claim as he had not been terminated under the provisions of Section 12(4) of the Labour Amendment Act No. 5 of 2015. He had, according to her finding, been summarily dismissed and no procedure was followed by $2^{nd}$ Respondent in that instance. She consequently dismissed the claim for notice-pay. In her concluding remarks she found that $1^{st}$ Respondent was unfairly dismissed by $2^{nd}$ Respondent, the remedy of reinstatement was however no longer tenable and $1^{st}$ Respondent was also not entitled to damages in lieu of reinstatement, in view of him having immediately mitigated his losses by finding alternative employment. She also dismissed all the other claims on the basis that they fell away as a consequence of $1^{st}$ Respondent having obtained alternative employment.

**PARTIES SUBMISSIONS BEFORE THIS COURT**

The $1^{st}$ Respondent’s submission in both written and oral, was that the Applicant erred and misdirected herself, in that after having found an unlawful and unfair dismissal she proceeded to dismiss $1^{st}$ Respondent’s claims for compensation for loss of employment. $1^{st}$ Respondent further contended that the Applicant had failed to follow the dictates of Section 12(4a) of the Labour Act [Cap 28; 01] as it currently provides. She also erred and misdirected herself in finding that $1^{st}$ Respondent benefits including pension contributions for the period of 34 years engaged fell away because he had immediately obtained alternative employment after leaving $2^{nd}$ Respondent’s employment. The $1^{st}$ Respondent also disputed that he was only entitled to the 7 months when he was prematurely retired. In oral submissions, counsel for $1^{st}$ Respondent, sought to introduce additional evidence before this court, which evidence was said to have been unavailable at the time matter was pending before the Labour Officer. Counsel submitted that her application was premised on Rule 12 of Labour Court Rules 2017 and the $2^{nd}$ Respondent would not be prejudiced by the introduction of the additional evidence. The application was vehemently opposed by $2^{nd}$ Respondent’s Counsel, on the basis, firstly, that Section 93(5b) of the Labour Act [Cap 28;01] does not make any provision for this court to, in the course of hearing an application for confirmation of a draft ruling, receive additional evidence. The court is only allowed to grant the order of confirmation with or without an amendment. The section confines the court to only the record of proceedings and submissions made before the Labour Officer. It was Counsel further submission that it is the position at law in any event that Rules of court cannot override the clear provisions of statute. Counsel also referred to the unique position of the Labour Court of being a creature of statute and therefore its powers/competence are derived from the Labour Act enactments. The court is not a court of first instance. In this case all evidence had to have placed before the Applicant. 2nd Respondent’s prayer was for dismissal of application for introduction of additional evidence.

**RULING ON APPLICATION TO INTRODUCE ADDITIONAL EVIDENCE**

In dismissing the application to adduce additional evidence I relied on the statutory provisions in **Section 89, 93(5a) (5b)** of the **Labour Act [Cap 28; 01]**. I noted that the Labour Court is a creature of statute; it therefore derives its powers/competence from the enabling act, being the **Labour Act [Cap 28:01]**. **Section 89** generally outlines the powers that this court has, which is to hear and determine appeals/applications as provided for in the Act and other related enactments. **Section 93(5a) (5b)** provides for a special hybrid application which was introduced through the **Labour Amendment Act No. 5 of 2015**. **Section 93(5a) (5b)** provides as follows;

“(5a) A labour officer who makes a ruling and order in terms of subsection (5) (c) shall as soon as practicable –

(a) make an affidavit to that effect incorporating, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down to for hearing (the “return day” of the application) to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court”.

It is clear under the provision of Section 93(5b) the Labour Officer after issuing a draft ruling in a dispute or unfair labour practice has to lodge with the Labour Court an application for confirmation of the draft ruling. The Labour Court powers under the same provision are to either grant the application with or without amendment. The court noted that in Air Zimbabwe vs. Mateko SC 180/20 GARWE JA (as he then was) had discussed the role of the Labour Court as being to ‘correct the draft ruling in order to make the order acceptable in terms of the law and facts’. The learned Judge had gone further to indicate that what the Labour Court cannot do however in confirmation proceedings is to substitute the Labour Officer’s ruling and replace with its own. The Labour Court can only effect amendments to the ruling.

The court also noted that there had also been other judgements emanating from the Supreme Court which had however taken a contrary approach to the Air Zimbabwe vs. Mateko matter. I specifically referred to **Chrispen Vundhla** vs. **Innsor** SC 14/22 in which KUDYA JA had taken the approach that the confirmation role of the Labour Court in these proceedings was to conduct a rehearing of the matter as placed before the Labour Court (i.e. an appeal in the wide sense). The Labour Court is therefore not bound by the factual findings and legal expositions of the Labour Officer. It necessarily followed that in such a re-hearing then the Labour Court would be allowed to receive additional evidence.

My view was that in view of the divergent positions as taken by the same court I was more inclined to follow the approach in **Air Zimbabwe** vs. **Mateko**, that this court in hearing the application the court has to confine itself to the record of proceedings, it has to consider the submissions of the parties and the evidence as presented before the Labour Officer. It was also my view that the provision under **Section 93(5b)** in any event make no provision for receiving of additional evidence before the Labour Court. It was on this basis I dismissed the application for the introduction of additional evidence.

**MERITS**

After listening to submissions by the parties and upon my perusal of the record it was apparent that the Labour Officer had indeed misdirected herself at law in determining the matter. The first error she committed was in failing to clearly outline the basis of the termination - was the basis of 1st Respondent termination an unlawful or unfair dismissal? It is clear from the record 1st Respondent had referred a claim for unfair dismissal with Applicant. The Applicant however in her award seemed to prevaricate in her findings between an unlawful and unfair dismissal. It is clear that both are provided for under different sections of the **Labour**
 Act [Cap 28:01]. There was yet a third option also provided for under the labour Act being a termination of a permanent contract on notice. Needless to point out each of these forms of termination have different principles of law that are applicable wherever there is such a termination.

The Labour Officer in her award, initially outlined the provisions of Section 12(B) of the Labour Act which provision relates to unfair dismissal. She then made a finding as follows;

“In casu no procedure was followed in terminating claimant’ contract of employment as he was just told by the General Manager not to report for work from 30 April 2020. I am persuade by claimant’s argument and also in terms of section 12B that claimant was unfairly dismissed”

A few lines below the Labour Court fell into her second error; she made reference to a premature termination which clearly referred to the fact that Applicant was terminated before his retirement. It brings the issue as to what was the form of termination was it an unfair dismissal or an unlawful decision in the form of a premature termination before retirement.

The Labour Officer in the last paragraph on that page made yet another contradictory finding she started as follow;

“Claimant made a claim for 3 months’ notice pay arguing that he is entitled to notice pay because Respondent terminated his employment without notice. Respondent however dismissed this claim sating that claimant cannot claim notice pay as he immediately mitigated his loss by getting another job soon after his termination. I find this contradictory as claimant’s employment was not terminated in terms of section 12(4) of the new amendment no 5 of 3015. Claimant was summarily dismissed and no procedure was followed by the Respondent in terminating his contract of employment. It is my humble view that the claim of notice pay does not apply in the instance”

The Labour Officer agreed with 2nd Respondent and made another finding that 1st Respondent’s termination was not in terms of Section 12(4) of the Labour Court Amendment Act No. 5 of 2015 he was instead summarily dismissed. It is apparent that the Labour Officer was confusing herself even more as she went. She was now referring to a summary dismissal without following procedures, which begs the question which procedures?

The critical issue she ought to have addressed initially was the nature of termination. This is normally derived from the letter so terminating employment. In submissions before the Labour Officer under paragraph 45 2nd Respondent indicated that;

“The claimant was not retrenched. He was released on 30 April, 2020. He was going to retire in November 2020 anyway. He was left with seven months only”

It is clear from that submission that this was a premature termination. The letter which is marked as ‘Annexure D’ which was authored by 2nd Respondent’s lawyers to 1st Respondent’s lawyers also clearly refers to a termination on notice. It is therefore clear that the Labour Officer erred in referring to the other forms of termination such as the unfair termination under section 12 B. It is also the position having established that the 1st Respondent was terminated on the basis of notice the Applicant was duty bound to establish whether that termination complied with the relevant provisions of the law. The 2nd Respondent in effecting the termination on notice needed to do so on the basis of any one of the methods as outlined under Section 12(4) (a) of the Labour Act. In other words, outside the four scenarios as outlined under section 12(4)(a) an employer no longer has the legal right to terminate a contract of employment on notice. See in this respect Air Zimbabwe (Pvt) Ltd vs. J.V.Mateko and others referred to supra.

It is common cause that section 12(4)(a) was introduced via the Labour Amendment Act No. 5 of 2015. That Act amended Section 12(4) to introduce Section 12(4a) which now reads as follows;

“12(4a) No employer shall terminate a contract of employment on notice unless –

(a) the termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9); or

(b) the employer and employee mutually agree in writing to the termination of the contract; or

(c) the employee was engaged for a period of fixed duration or for the performance of some specific service; or

(d) pursuant to retrenchment, in accordance with section 12C.”

It is also important to note that the same amendment also introduced Section 12(4b) which stipulates that;

“(4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is an employee under the terms of contract without limitation of time the provisions of Section 12C shall apply with regards to compensation for loss of employment”

It is clear therefore in this case that contrary to the position as taken by the Applicant the 1st Respondent was terminated on notice; as the termination was not as provided in terms of Section 12(4a) it was clearly an unlawful termination; the 1st Respondent was also entitled under Section 12(4b) to be paid compensation for loss of employment as provided in Section 12C.


In view of the many patent errors made by the Applicant in this case the court is disinclined to confirm the ruling.

In the circumstances the application for confirmation cannot be granted.

It is accordingly ordered that;

1. The application for confirmation of applicant’s draft ruling be and is hereby dismissed.
2. Each party to bear its own costs.

*M.S. Musimbe & Associates, 1st respondent’s legal practitioners*

*Gill, Godlonton & Gerrans, 2nd respondent’s legal practitioners*
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