Johnson Mvula, Susan Mawara, Sweden Chipope vs Little Children of Our Blessed Lady Sisters t/a Martindale Catholic Primary School

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CASE NO. LCH/531/24
JOHNSON MVULA
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CASE NO. LCH/531/24

JOHNSON MVULA

SUSAN MAWARA

SWEDEN CHIPOPE

VS

LITTLE CHILDREN OF OUR BLESSED LADY SISTERS

T/A

MARTINDALE CATHOLIC PRIMARY SCHOOL

THE LABOUR COURT OF ZIMBABWE

L HOVE J.

BULAWAYO 1 JULY 2024; 27 JANUARY 2025

For the Appellants		:	Stanley Dube

For the Respondent		:	Solomon Chako and Shame Mangoma

This appeal is against the decision of designated agent.

THE BACKGROUND FACTS

The appellants were employed in various capacities.  They were retrenched on 28 July 2021.  The appellants challenged the retrenchment on the basis that the retrenchment process was unlawful as they were retrenched by a non-existent entity.  Martindale Catholic Primary School which retrenched them was not their employer and it had no right to retrench them.  Martindale Primary School was registered under the name; Little Children of our Blessed Lady Sisters.  It was argued that Little Children of our Blessed Lady Sisters ought to have retrenched them and not Martindale Catholic Primary School.

The respondent challenged the proceedings before the tribunal aquo by raising several preliminary points.

In his determination in September 2023 the designated agent disposed of the preliminary issues. He decided that;

The matter was not prescribed in terms of law.

The matter was not fatally defective.

The application for joinder was sustained.

The respondents waived their right to challenge the retrenchment process when they did not return the packages paid by the claimant.

THE ISSUE BEFORE THE COURT

The only issue that therefore remained between the parties was whether or not the designated agent had been correct in his finding that:

“The appellants waived their rights to challenge the retrenchment process when they did not return the packages paid by the respondent.”

GROUNDS OF APPEAL

Before this court, the appellants’ grounds of appeal were 6, id est,

The school which conducted the retrenchment exercise and went on to retrench the appellants, Martindale Catholic primary School is not a legal entity and is not their employer hence it had no capacity to terminate their contracts of employment.

The appellants were unlawfully retrenched by Martindale Catholic Primary School a non-existent legal entity, this made the terminations a legal nullity.

The designated agent of the National Employment Council for Welfare and Educational Institutions Honourable T. Mutsago grossly erred and misdirected himself by making a finding that the appellants waived their right to challenge the retrenchment process when they did not return the packages paid by the respondent.  Such a finding amounts to an error at law simply because the respondent unilaterally deposited the packages without appellants’ consent or knowledge.

The designated agent grossly erred and misdirected himself by saying that the appellants accepted the money and used it without taking into consideration that the appellants had already expressed their dissatisfaction over the matter and their representative had written to the respondent challenging the retrenchment.

The designated agent grossly erred and misdirected himself by making a finding that the appellants accepted the money when no proof and evidence was availed before him to demonstrate the acceptance and waiver.

The designated agent grossly erred and misdirected himself when he failed to capture submissions made by both parties on the waiver by the applicants to challenge the retrenchment.  The designated agent made a determination based on his views and not on submissions made by the parties.

THE RELIEF SOUGHT

That the appeal succeeds.

The retrenchment initiated and implemented by Martindale Catholic Primary School be proclaimed a nullity as it was done by a non-legal entity.

That the operative part of the designated agent’s determination in particular bullet iv be set aside and be substituted with the following:

That the appellants did not waive their rights as they had already demonstrated

that they were aggrieved with the process and had made their intentions known to

the respondent on their own and through their representative’s communication

to the respondent.

That the appellants be reinstated to work with full pay and benefits effective the

date of unlawful retrenchment as they were retrenched by a non-legal entity or

alternatively that they be paid damages in lieu of reinstate if reinstatement is no

longer feasible.

The dispute which remained unresolved between the parties is really centred on one issue of whether the failure to return the retrenchment packages constituted a waiver on the part of the appellants.

The decision by the tribunal aquo was that the appellants had waived their rights.

THE APPELLANTS ARGUMENT

The argument by the appellants challenging the findings aquo was that they had challenged the retrenchment proceedings.  The respondent, in spite of the challenges, proceeded to deposit into their accounts the retrenchment packages.  They argued that they did not “accept” the retrenchment packages.

They argue that the word accept means “to receive something willingly” or “consent to receive.”

They argue that there was no evidence that there had been acceptance.

THE RESPONDENT’S ARGUMENTS

The respondent argues that after the retrenchment negotiations, the retrenchment packages were deposited into the appellants’ bank accounts.  These amounts were never returned.  It is the failure to return the retrenchment packages that constituted waiver.

THE LAW

The position of law is that a Court does not lightly assume that a party has abandoned or renounced his right.

In the case of Barclays Bank V Binga Products P/L 1984 (2) ZLR 76 the court quoted Lord Denning as follows:

“The Principle of waiver is simply this, if one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should not act on that belief and he does act on it then the first party will not afterwards be allowed to insist on the strict legal rights when it would be inequitable for him to do so”

The law also provides that for a party to waive its rights, it must appreciate what its rights were.  One cannot waive a right that one does not know he or she has.

Where waiver is alleged therefore, the onus is strictly on the party claiming that waiver has taken place.  He must show that the other party, with full knowledge of his right decided to abandon the rights whether expressly or by conduct plainly inconsistent with the intention of enforcing the rights.

THE LAW AND THE FACTS

The undisputed facts are that retrenchment packages were deposited into the three bank accounts of the three appellants.  It is also common cause that those deposited amounts were never returned to the respondent.  It is also common cause that the parties had been negotiating retrenchment packages.  It is again common cause that the three appellants had resisted the retrenchment process.

The law requires that the appellants should have been aware of their rights, clearly, in casu the appellants were aware of their rights, they knew that the purported employer was not their actual employer.  They had a right to challenge and resist the retrenchment process on this basis.  The retrenchment packages were then deposited into the appellants accounts.  These packages were not returned.  The appellants argued that;

They were not aware that these were retrenchment packages, and

That they had not waived their rights in view of the fact that they did not accept the

money.

ANALYSIS

The relevant issue is that the packages were not returned.  It is not so much about acceptance but about failure to return the packages.  These packages were deposited into their bank accounts.  The appellants must, if they were not accepting the packages, have returned the packages.  From the moment that they become aware that there had been deposited the retrenchment packages into their accounts they ought to have returned the packages.  Ever since this dispute about the “returning” of the packages was first argued to date, no retrenchment packages were returned.

The appellants argue that they were owed some monies and when they saw the deposits they thought it was those monies that they were owed.  The parties later became aware but in spite of them being aware that those monies were retrenchment packages nothing has been returned.

Firstly, the appellants may not have known that the monies deposited into their accounts related to the retrenchment packages at first.  They did not accept these monies which were deposited into their accounts as retrenchment packages.  But what is clear is that they later came to know that the monies related to retrenchment packages, at that stage, they ought to have returned the money or tendered it back.  They did not.  They kept the money even after they had knowledge of the fact that the money was in fact retrenchment packages.  Their failure to return the packages was not consistent with persons who wanted to insist on their rights.  Their conduct led the respondent to believe that the strict rights arising under the circumstances of this case will not be insisted on.  To keep the money and insist on their rights would be inequitable.

While the court should not lightly assume that the appellants abandoned or renounced their rights, the circumstances of this case show that the appellants kept the retrenchment monies while knowing that they had a defence to the intended retrenchment.  The appellants’ conduct is consistent with litigants who have decided not to insist on their rights, a waiver of their rights.  They knew they had rights but retained the retrenchment packages in a manner that would lead the respondent to believe that they had abandoned their insistence on their rights and accepted the retrenchment.

The respondent has in my opinion managed to discharge the onus.  They demonstrated that the appellants with full knowledge of their rights decided to retain the retrenchment packages thus abandoning their rights.  They can now not insist that they were retrenched under a trade name and not the registered name of the school.

Waiver was therefore proved.  See also the cases of:

Chidziwa and others V ZISCO Limited 1997 (2) ZLR 368 (s)

Lyton Shumba V CBZ Limited H H 100/06.

DISPOSITION

This court having found that waiver was proved, it dismisses the applicants’ appeal as being one without merit.

ORDER

The appeal be and is hereby dismissed with each party bearing its own costs.

……………………………….

L HOVE J.

/al