Joshua Chibuda and 8 Others v Pioneer Coaches and Another
Judgment text
### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/153/24
HARARE, 15 JANUARY, 2024
CASE NO LC/H/609/23
05 APRIL 2024
JOSHUA CHIBUDA AND 8 OTHERS
APPLICANTS
PIONEER COACHES AND ANOTHER
RESPONDENTS
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/153/24
HARARE, 15 JANUARY, 2024
05 APRIL 2024
CASE NO LC/H/609/23
JOSHUA CHIBUDA AND 8 OTHERS
APPLICANTS
PIONEER COACHES AND ANOTHER
RESPONDENTS
Before the Honourable G. Musariri, Judge:
For Applicants - Mr M. Kavhumbura, Attorney
For Respondents - Mr B. Mudhau, Attorney
MUSARIRI, J:
Applicants applied to this Court for quantification of damages for loss of employment. 1st Respondent opposed the appeal.
The matter arises from the order issued by this Court on 24th October 2022. The order nullified the dismissal from of employment of applicants (employees) by the 1st respondent (employer) and remitted the matter to the employer for a rehearing within thirty (30) days. If the employer did not comply, it was ordered to reinstate the employees or pay them damages either agreed by the parties or assessed by this Court.
The employees stated that employer did not conduct the re-hearings. Thus it failed to comply with the court order hence the present application for quantification of their damages.
Per contra the employer stated that it complied with the court order by conducting hearings which the employees failed to attend. They were all dismissed in terms of the rehearsings.
The 1st issue that arises is whether the re-hearings were conducted. The employer relied on notifications dated 10 November 2022 addressed to each of the employees. The notification advised of a hearing set for 17 November 2022 in Harare. The employer provided no other proof of the hearing such as the minutes and termination letters. Therefore it relied solely on the notifications. At the bottom of each notification appears a paragraph in which a messenger stated that he served the notification.
“…by placing in the letter box at No…., after hooting with no response.”
In their heads of argument the employees argued thus;
“20. The 1st Respondent’s purported notices to the Applicants are fictitious letters. This is glaringly evident in the way the letters were cultured. There is no way the 1st respondent, at drafting the letters of invitation, correctly predicted that its messenger was going to hoot, find no response, affix the invitation on the letter box and this exactly comes true on all the 9 applicants, irrespective of the fact that letter boxes are now a rare item on homesteads following the dysfunctional of the postal services. This means that the invitation letter was prepared together with the certificate of service. This is reflected by the fact that all the proof of services were pre-typed on the notice of invitations.”
In its heads of argument the employer countered that;
“12. The attack launched on the notices of hearing annexed to the opposing affidavit is misplaced. The rules of this court do not lay out the format which certificates of service for proceedings conducted by Disciplinary Committees must take.
The form that certificates of service in the record take after suffice in terms of the law. The notices of hearing also comply with the law in so far as the notice period given to the applicants to attend the hearing is concerned. There is no doubt that the notices of hearing give each of the applicants more than three days to attend the hearings. This is not disputed by the applicants.”
This Court is persuaded by the employees’ argument. The coincidences in the matter are rather contrived. Each of nine employees was served at diverse addresses in different towns on the same day. They were all served in the same manner by placing in the letter box. The services were done after each of the nine employees or the family members failed to respond to hotoing. The coincidences are too much. Further in the earlier case before this Court both parties were not represented. There is no satisfactory explanation as to why service was not done through the employees’ attorney. The explanation that the employer did not know whether attorney still had a mandate is a lame excuse. Service through the attorney was the most expedient thing to do in the circumstances. It is significant to note that the dismissal of the employees was set aside because the employer failed to produce the record of proceedings. Yet here again the same employer does not produce the new record of proceedings to prove its case. In all the circumstances this Court is persuaded on a balance of probabilities that no-rehearings were conducted.
The remaining issue is the quantification of the employees’ damages for loss of employment. The Court had provided for quantification of the damages by this Court. However it is inexpedient to do the quantifications of all the nine employees in this judgment. The best course is to amend the order by remitting the matter to the relevant National Employment Council for the sole purpose of quantifying each employee’s damages.
Wherefore it is ordered that,
1. The application for quantification of damages be and is hereby granted;
2. The matter is remitted to the National Employment Council for the Transport Operating Industry for its Designated Agent to quantify each of the applicants’ damages in lieu of reinstatement; and
3. $1^{st}$ Respondent shall pay the costs of suit.
G. MUSARIRI
J-U-D-G-E
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