KSK Engineering (Private) Limited v C. Tanyanyiwa N.O. & Cain Gadzira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/68/25
HARARE, 19 FEBRUARY, 2025 AND
25 FEBRUARY 2025
CASE NO LC/H/1179/24 & 1185/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/68/25 HARARE, 19 FEBRUARY, 2025 AND

25 FEBRUARY 2025	CASE NO LC/H/1179/24 & 1185/24

KSK ENGINEERING (PRIVATE) LIMITED

C. TANYANYIWA N.O.

CAIN GADZIRA

APPELLANT

1ST RESPONDENT

2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant

For 1st Respondent

For 2nd Respondent

- T.R. Round, Attorney

- No Appearance, Absentia

- N. Matongwana, Unionist

MUSARIRI, J:

This matter follows upon the issue of a consolidation order by this Court. As a result, the appeals by appellant and 2nd respondent against the arbitral award issued by 1st respondent were heard as one matter. The following is the judgment in the both matters.

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CASE NO LCH/1179/24 & 1185/24

Appellant’s Appeal

2nd respondent raised three (3) points in limine to the effect that the notice of appeal is

fatally defective by reason of non-compliance with the Labour Court Rules, 2017. Appellant countered by seeking condonation for the non-compliance. The 2nd point is dispositive of the appeal. 2nd respondent argued that because the notice of appeal lacked an alternative email address, the notice is fatally defective for failure to comply with Rule 11A(4). In peremptory terms, the rule requires that a notice of appeal should have an alternative email address. The appellant conceded the omission but sought condonation under Rule 32. However rule 32 provides condonation in a matter properly pending before the Court. The notice of appeal is fatally defective for failure to provide the email address. The notice being a nullity, there is no case before the Court in which condonation can be sought or granted. Accordingly appellant’s appeal was struck off the roll on account of a fatally defective notice of appeal.

2nd Respondent’s Appeal

Respondent raised a point in limine to the effect that there was no valid response. The point

zeroed in on the resolution attached to the opposing affidavit. The respondent took issue with the fact that the person who signed it did not spell out their name. There just appears a signature above the word “Chairperson.” The document does not bear appellant’s letter-head or seal/stamp. It was argued that document could not be taken as an official resolution by appellant’s board of directors. The point was not raised in any of the documents filed by respondent.

Appellant countered that there is no requirement for the Chairperson to spell out his name.

It further argued that the absence of a letter-head or seal is not fatal. Alternatively the Court should condone the alleged defects as they do not prejudice respondent. The resolution was attached to the opposing affidavit deposed by Rodgers Musekiwa who identified himself as appellant’s Accountant. As the Accountant, Musekiwa can be relied upon to know appellant’s Chairperson. It was not suggested that Musekiwa is not who he says he is. On that basis the Court is satisfied that the opposing affidavit was deposed by a person duly authorized by the Chairperson.

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CASE NO LCH/1179/24 & 1185/24

Respondent raised a point in limine to the effect that the grounds of appeal are not “concise and precise.” The point was not motivated in oral argument and thus effectively abandoned.

In any case the Court is satisfied that grounds 1 and 3 are clear and concise. However grounds 2 and 4 appear to be elaborations of ground 1.

Appellant countered respondent’s appeal in its opposing affidavit as follows in the main,

“5. Ad Ground 1

This is disputed. The issue of whether there was a lawful or unlawful termination of the Appellant’s employment was not brought before the Arbitrator. Appellant’s claim as it appears on page 9 of the Notice of Appeal clearly shows that the Appellant claimed outstanding salaries and compensation for leave days as well as loss of employment. The Arbitrator did not sit to decide whether the Appellant’s employment was lawfully terminated or not. The Arbitral Award’s terms of reference clearly shows that the matter before her was one for quantification and not one for unlawful termination of employment. Therefore there was no way the Arbitrator was going to make a determination on an issue that was not before her…

6. Ad Ground 2

… It was not the Respondent’s duty to serve Appellant with any determination. After the Designated Agent’s determination dated 7 February 2022, which determination was served on all parties, it was Appellant’s duty to report for duty and resume his duties…

7. Ad Ground 3

… The Appellant did not prove in any kind of way that it was entitled to a leave of ninety (90) days. Appellant fails to appreciate the fact that after the determination of 7 February 2022 she was supposed to return for work. His failure to report for work repudiated his contract of employment…

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CASE NO LCH/1179/24 & 1185/24

8. Ad Para 4

… There was no evidence placed before the Arbitrator to prove that indeed, Appellant actually tried to report for duty but was prevented from doing so…”

Appellant then prayed that respondent’s appeal be dismissed.

Analysis

The grounds of appeal and response thereto raise 2 main issues which will be dealt with in turn.

A. Whether respondent repudiated the employment contract in 2024:

It is common cause that on 7 February 2022, 2nd respondent issued a determination ordering appellant to reinstate respondent without loss of salaries and benefits. What is in issue is what happened consequent upon the determination. The arbitrator in her analysis opined as follows;

“There is no proof on record to show that the Claimant reported for duty and was not

allowed entry into the company premise. The evidence is very critical in this matter as it is the only thing that will prove that the Claimant attempted to engage the employer upon receiving the determination. In fact, despite the fact that the Designated Agent wrote a determination by consent, the Respondent wrote the Claiming advising him to report for duty. Failure to report for duty means that the Claimant had reneged his responsibility. The Claimant did not furnish the tribunal with the proof of him going to work and him being denied entry into the premise. If this was done, he was supposed to come back to the NEC for assistance on the way forward. The Claimant is not entitled to any compensation for loss of employment because he was not unfairly dismissed from employment and neither is he entitled to any cash in lieu of notice.”

Thearbitrator’s finding that respondent repudiated the contract of employment is supported

by the hand of his representatives. His representative T. Humbarume signed for the reinstatement determination on 6 February 2023. Then on 25 April 2023 another representative N Matongwana

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CASE NO LCH/1179/24 & 1185/24

wrote to appellant’s director noting the determination but not demanding his reinstatement as ordered by 1st respondent. The letter only claimed outstanding salaries and gratuity. This suggests that 2nd respondent had decided to forego reinstatement but get his outstanding dues. In the circumstances he effectively repudiated the contract of employment. However he is entitled to salaries and benefits up to the date of repudiation.

B. Whether respondent is entitled to leave pay for 90 days:

In his statement of claim respondent claimed leave days over 3 years from 2021 to 2024

amounting to 90 days.

The arbitrator found as follows;

“On the issue of cash in lieu of leave the Claimant had claimed for ninety days and the employer offered 2.5 days. There is no justification from both parties on their claims for the leave days. On a balance of probabilities, the Arbitrator will award the Claimant forty-five days. It is not practical that the Claimant attended work for three continuous years without going on leave.”

The award of 45 days leave pay is consistent with the finding that respondent repudiated the

contract in 2023. None of the parties produced evidence on leave which justifies interference with the award of 45 days’ leave pay.

Conclusion

In light of the foregoing this Court concludes that respondent repudiated (resigned) by his representative’s letter dated 25 April 2023 wherein he sought his dues instead of reinstatement. It follows that he is entitled to outstanding salaries up to that date. The arbitrator wrongly awarded salaries up to 7 February 22. This means that a further 15 months’ salaries (amounting to US 180× 15= 2 700) is due to respondent.

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CASE NO LCH/1179/24 & 1185/24

Wherefore it is ordered that,

1. The appellant’s appeal be and is hereby struck off the roll on account of a fatally

defective notice of appeal;

2. The respondent’s appeal be and is hereby partially allowed so that arbitral award dated 15 October 2024 issued by 1st respondent is amended by

a) The deletion of the figure US$4 020 and substitution of US$6 720 and

b) The deletion of the figure US$1 005 and substitution of the figure US$1 680; and

3. Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E