Jennipher Mateko N.O. v Engineering Iron and Steel Association of Zimbabwe & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/174/2020
HARARE, 28 NOVEMBER 2019
CASE NO. LC/H/LRA/514/17
AND 31 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/174/2020

HARARE, 28 NOVEMBER 2019 				CASE NO. LC/H/LRA/514/17

AND 31 JULY 2020

In the matter between:

JENNIPHER MATEKO N.O.					APPLICANT

versus

ENGINEERING IRON AND STEEL

ASSOCIATION OF ZIMBABWE 					1ST RESPONDENT

NTANDO TSHABANGU						2ND RESPONDENT

Before The Honourable Makamure J

Applicant				In person

For the 1st Respondent			Ms T. Mazikana (Legal Practitioner)

For the 2nd Respondent		Mr A. Mufari (Legal Practitioner)

MAKAMURE J:

This is an application for confirmation of a draft order made by the applicant. It is being made in terms of section 93 (5a) (a) & (b) of the Labour Act [Chapter 28:07].

The application was granted. The following are the reasons.

The facts of this matter which appear to be largely common cause are as follows. The

1st respondent dismissed the 2nd respondent from employment. Such dismissal was reversed after the 2nd respondent had formally complained of unlawful termination of employment. The termination was done on 29 August 2016 and it was reversed on 16 November 2016. This means that the 1st respondent reinstated the 2nd respondent to his post.

What is reinstatement? According to the Oxford Advanced Learners Dictionary, to reinstate means:

(i)	“to give back a job or position that had been taken away…”

(ii)	to return (something) to its previous position.”

When the 2nd respondent was reinstated some of the benefits which he used to get were not reinstated. These benefits included airtime allowance, fuel allocation, vehicle benefit allowance, use of a company motor vehicle, full medical aid contribution by the employer, 13th cheque and pension contribution. He therefore claimed these benefits. The 1st respondent’s position is that the 2nd respondent had no contractual right to these benefits. The matter was considered by the applicant.

After considering the evidence placed before him the applicant found that the claim for a 13th cheque and review of salary upwards were not proved as these were discretionary and depended on the financial status of the 1st respondent. The applicant made a finding that the reinstatement was incomplete. In view of this finding an order was made for the 1st respondent to pay the 2nd respondent overtime allowance, vehicle allowance, fuel allowance, pension contribution. The parties were to agree on the quantum of such pension contribution. The calculated amount payable to the 2nd respondent by 1st respondent is $2 206 - 50 plus pension contribution.

The 1st respondent argued that the court has to make a finding on whether or not there was reinstatement in view of non restoration of the full benefits. It was submitted on behalf of the

1st respondent that once the 2nd respondent was given his job back, he was reinstated. The submission proceeded that an employer may fail to pay salaries but that does not mean that the employee is not employed. This means that it was only the question of benefits it being clear that the 2nd respondent was reinstated. It was argued on behalf of the 2nd respondent that there cannot be reinstatement when there is no restoration of the status quo ante.

Mr Mufari who appeared for the 2nd respondent argued that the 2nd respondent ought to be compensated for underpayment of salaries. In the circumstances Mr Mufari submitted that the 2nd respondent be paid the 13th cheque for 2016.

After considering the papers and argument, it is my view that the question of reinstatement is clear. This is in view of both the dictionary meaning and what authorities say. (See Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S)). In Kuda Madyara v Globe & Phoenix Mine t/a Ran Mine 2002 (Z) ZLR 269 (S) (Madyara) the Supreme Court stated that once an employee has been reinstated, they are entitled to all the benefits they were getting before the unlawful termination of employment. I am of the respectful view that the present matter should be guided by what the Supreme Court said in the Madyara case. However, with respect to the 13th or bonus, this is discretionary. Further in the peculiar circumstances of this case the upward review of salary was dependent upon the financial position of the 1st respondent. That again is within the discretion of the 1st respondent.

In view of the foregoing it is my view that the applicant’s draft ruling was made after due consideration of all the relevant factors.

It was in view of the foregoing that the application for confirmation of a draft order was granted in the following terms:

1.	The application for confirmation of a draft ruling made by Labour Officer Jennifer Mateko on 26 June 2017 be and is hereby confirmed.

2.	The 1st respondent, Engineering Iron and Steel Association of Zimbabwe pays Ntando Tshabangu the total of $2 206-50 broken down as follows:

(i)	Airtime allowance	$330-00

(ii)	Vehicle allowance	$1 200-00

(iii)	Fuel allowance	$676-50

Total			$2 206-50 plus pension.

3.	The 1st Respondent pays the applicant’s costs in the sum of $44-00.

4.	All payments be made within 30 days of this order.

Lunga Attorneys, 1st Respondent Legal Practitioners

J.T. Mawire & Associates, 2nd Respondent Legal Practitioners