KSK Engineering (Private) Limited v Gilbert Matarirano

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/63/2023
HARARE, 22 FEBRUARY 2023
And 28 FEBRUARY 2023
CASE NO LC/H/926/22
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IN THE LABOUR COURT OF ZIMBABWE	             JUDGMENTNOLC/H/63/2023

HARARE, 22 FEBRUARY  2023

And 28 FEBRUARY 2023                                                    CASE NO LC/H/926/22

KSK ENGINEERING (PRIVATE) LIMITED	              APPELLANT

GILBERT MATARIRANO 				    RESPONDENT

Before the Honourable Musariri Judge:

For Appellant       - Mr GRJ. Sithole, Advocate

For Respondent     - Mr C. Mashura, Attorney

MUSARIRI, J:

On the 12th September 2021 at Harare, Designated Agent P. Chiyangwa issued a determination.  She ordered appellant (employer) to pay respondent (employee) an amount of US$10,416-00 in respect of terminal benefits.  The employer then appealed to this Court in terms of section 92D of the Labour Act Chapter 28:01 (hereafter called the Act).  The employee opposed the appeal.

The grounds of appeal were seven-fold.  However, they raise basically 2 issues which will be dealt with in turn.

Whether the employee repudiated the contract of employment;

In her analysis the Designated Agent opined as follows,

“The argument of the respondent’s legal representative relates to repudiation of an

employment contract by the claimant.  According to the encyclopaedia repudiation of a

contract means “a refusal to perform the duty or obligation owed to the other party”.  No

proof has been tendered to support that there was repudiation of an employment contract.

A letter written by one of the directors clearly stated that the claimant should stop reporting

for work.  Therefore, repudiation of an employment contract cannot be a basis for argument

where written evidence has been provided.”

This finding is based on the written note by the employer to the employee which concluded that “we require you to go home till lockdown is finished.”  It is common cause that the “lockdown” referred is the national lockdown imposed by the Government of Zimbabwe due to the Covid 19 pandemic.  The employer claimed that by not returning to work when the lockdown ended the employee repudiated their contract.  However, in his statement of claim the employee stated that he tried to get back to work but his efforts were rebuffed.  Apparently, the Agent believed the employee’s word.  But no clear evidence appears on record as to when the lockdown ended.  That date is critical to determine whether the employee repudiated his contract.  The Agent should have taken details of the dates of the imposition and the lifting of the relevant lockdowns.  This becomes critical when one considers that the bulk of the award to the employee is in respect of the lockdown period.

Whether the Designated Agent properly quantified the employee’s terminal benefits:

The calculation of the benefits is based upon the employee’s monthly wage.  The employee stated he earned US$480-00 per month.  The employer stated that the wage was the equivalent of US$300-00 per month payable in Zimbabwe dollars.  Neither party produced documentary proof of the wages.  However, the employer is required to provide written records of the employee’s earnings in terms of s12 (2) of the Act.  The employer’s failure to provide the requisite record therefore tilts the balance of the probabilities in favour of the employee. However, the matter will be resolved on the basis of the 1st issue as indicated in the conclusion below.

Conclusion

In light of the foregoing observations and analyses this Court is unable the uphold the determination by the Designated Agent.  However, it is obvious from the record that the employee is entitled to some backpay and a gratuity in terms of the applicable Collecting Bargaining Agreement (C.B.A). It is just and equitable that the matter be remitted back to the Agent for a hearing afresh in light of the comments herein.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The determination by the Designated Agent P. Chiyangwa dated 12th September 2022 is set aside; and

The matter is remitted back to the Designated Agent, or her successor, for a re- hearing within the next 60 (sixty) days.

G MUSARIRI

J-U-D-G-E