Makesure Munzvandi v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/480/14
HARARE ON 3RD JULY, 2014
CASE NO. LC/H/210/14
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/480/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/480/14

HARARE ON 3RD JULY, 2014			                   CASE NO. LC/H/210/14

AND 1st AUGUST, 2014

In the matter between

MAKESURE MUNZVANDI 				–	APPELLANT

And

OK ZIMBABWE LIMITED				-	RESPONDENT

Before The Honourable F.C. Maxwell J.

For Appellant :	M. T. Majome (Legal Practitioner)

For Respondent:	R. Matsika (Legal Practitioner)

MAXWELL J,

Appellant was employed on three months contracts from 1st October 2003. The last of such contract expired on 31st December 2009 and was not renewed. The Appellant challenged the non-renewal as unlawful dismissal. The matter was subsequently referred to arbitration and the Arbitrator ruled in favour of the Appellant. The Arbitrator ordered that;

“Since the last contract had run its course, it is the tribunal’s view that the claimant is entitled to reinstatement or to payment for an equivalent period to his last contract, on the same terms and conditions as that last contract which was subsequently not renewed. That reinstatement or payment in lieu of reinstatement is therefore only for three months. I agree with the respondent’s submissions in this regard. The tribunal cannot order the payment of compensation beyond that period. These are the only payments, due and the damages claimed by the claimant are consequently dismissed.”

The award was handed down on 14th February 2014. On 10th March 2014 Appellant noted an appeal against the arbitral award. The grounds of appeal are;

The learned arbitrator erred in making a contradictory determination. He ruled that there had been unlawful dismissal in terms of Section 12B(3) but trivialized that serious finding by failing to award appropriate damages or compensation appropriate to that breach of the law.

The learned Arbitrator did not give due consideration and weight to Respondent’s breach of the law and its implications.

At the hearing of the matter Appellant elaborated the grounds of appeal. It was submitted that the attack is on the non-award for the unfair dismissal. According to Appellant, once wrongfulness is established the award should include a punitive element. He submitted that Respondent must be punished for the wrong doing, the bigger the corporation the higher the damages. In the heads of argument Appellant placed reliance on Section 29(b)(iii) of the Labour Amendment Act, No. 17 of 2005 which states that;

“should damages be awarded instead of reinstatement or employment as a result of untenable working relationship arising from unlawful or wrongful dismissal by the employer punitive damages may be imposed.”

Appellant also made reference to Labour and Employment Law in Zimbabwe by M Gwisai as well as the cases of ZUPCO vs Chisvo 1999 ZLR 67 and Johnson & Johnson (Pty) Ltd vs CWIU (1999) 20 ILJ 89. Appellant prayed for an award of $30 000 in punitive damages.

On 21st March 2014 Respondent filed a Notice of Response avering that;

There was nothing contradictory about the honourable Arbitrator’s award. The remedy which is available to an employee who has been unfairly dismissed is reinstatement, failing which the payment of damages as stipulated in Section 98 of the Labour Act and as decided by several superior Court authorities. The award which was made in cash therefore complied with the law in that regard. No special circumstances existed in this matter which would justify departure from the law on the subject.

In any event there was no basis on which the Honourable Arbitrator could have found that there was a breach of Section 12B(3) of the Labour Act.

On 25th March 2014 Respondent filed a cross-appeal with the following grounds of appeal;

The honouable arbitrator erred in making a finding that another person was employed in the Appellant’s place following the non-renewal of his contract. The evidence which was led before the Honourable Arbitrator showed that the Appellant was, at the time of the expiry of his last contract, employed as CCTV Operator. The evidence furthermore showed that of the five people whom the Appellant claimed had been engaged by the Respondent in January 2010, only Dumisani Sibanda was so engaged and he was engaged as a Till Operator. There was therefore no basis for finding that someone else was engaged in the Appellant’s place.

That being the case, there was no basis on which a finding that there had been an unlawful dismissal within the meaning of Section 12B(3) of the Labour Act be sustained.

The honourable Arbitrator furthermore erred in awarding wasted costs against the Respondent in circumstances in which a reasonable explanation had been given for the Respondent’s representative’s failure to attend.

Respondent  prayed that the award be set aside and an order dismissing the claim be made. In its heads of argument, Respondent argued that the appeal has no legal basis as Section 89(2)(c) of the Labour Act was not applicable in the present circumstances. It further argued that damages are awarded as an alternative to reinstatement. In casu the Appellant does not seek the setting aside of the order of reinstatement but claims damages in addition to reinstatement. There is no legal basis for such a claim. Respondent further argued that the manner in which Appellant calculated his damages is flawed and in any event he obtained alternative employment on 1st November 2011 and is therefore not entitled to an order of damages.

The Appeal

The question that exercises the Court’s mind is whether or not Appellant is entitled to the punitive damages of $30 000 he is claiming. The Supreme Court stated in Posts and Telecommunications Corporation v P.G. Swabata SC 42/03 that;

“The first principle to be borne in mind for purposes of assessing damages in such cases is that the damages should be the direct or probable consequence of the wrongful dismissal of the employee from employment. The measure of the damages is the amount of wages or salary and benefits the employee would have been entitled to receive but for the wrongful termination of employment.  The damages are assessed from the date of wrongful dismissal to the date of the order of reinstatement.”

It seems to me that the measure of damages Appellant is claiming is not related to the amount of wages or salary and benefits he would have been entitled to receive but for the wrongful termination of employment. To use his Counsel’s words Appellant is seeking that the Respondent be punished for wrong doing and that the quantum should relate to the size of the Corporation. Appellant has not referred this Court to any locally decided cases on that aspect.

Reference was made to a publication by Munyaradzai Gwisai and the case of ZUPCO v Chisvo 1999 (1) ZLR 67. I find the ZUPCO case distinguishable from the present case. In that case the employer was not willing to reinstate an employee who had been wrongfully dismissed where the Court was of the view that there was no difficulty or awkwardness in the relationship between the employee and the employer. The Court was of the view that damages would not make up for a long-time job unjustifiably lost and therefore the quantum of damages should be sufficiently high to suggest to the employer that reinstatement is the more appropriate and equitable alternative. In this case the Respondent is willing to reinstate the Appellant.

Appellant in heads of argument states that the awarding of punitive damages in labour disputes is provided for in the Labour Amendment Act No. 17 of 2005, Section 29 (b)(iii). In my view Appellant is mistaken as to the applicability of this provision to his case. Section 89 (2)(c) of the Labour Act applies in relation to applications in terms of Section 93(7)(ii) of the Labour Act [Chapter 28:01]. Section 93(7)(iii) of the Labour Act applies in two instances;

where a certificate of no settlement has been issued but the dispute or unfair labour practice cannot be referred to arbitration.

where a labour officer refuses to issue a certificate of no settlement after the expiry of the period allowed for conciliation.

and the aggrieved party thereafter refers the matter to this Court. Put simply, the provisions do not apply to a situation where an Arbitrator has handled the dispute or unfair labour practice. I therefore find that there is no basis for Appellant’s claim of punitive damages.

In any event the Appellant has not shown how the figure of $30 000 was arrived at. According to GUBBAY C.J.  (as he then was) in Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 734 @ 380.

“…………….to quantify damages, or indeed make any finding, on no evidence is to err in law. See R v Birmingham Compensation Appeal Tribunal, Exp Road Haulage Executive [1952] 2 ALLER 100 (QB) @ 101 F; Wade Administrative Law 6 EJ at page 320; de Smith Judicial Review of Administrative Action 4 ed at page 133.”

Appellant has not proffered any method by which the amount claimed was calculated. The Supreme Court has condemned the “plucking of a figure out of a hat” on the basis that the figure meets the justice of the case where no evidence is led. See Redstar Wholesalers vs Edmore Mabika SC 52/05.

Respondent, in heads of argument, raises the question whether an employee who is unlawfully dismissed can be awarded both reinstatement and damages. In my view that will only be applicable where the employee has been awarded reinstatement without loss of wages and benefits. In that case, in addition to getting the job back, the employee will be entitled to back-pay for the period from the date of wrongful dismissal to the date of the order. However where the award has no retrospectivity, the authorities cited by Respondent apply. In that case damages are awarded in lieu on reinstatement, not in addition to reinstatement. In this case the award does not fall into any of the two categories mentioned above. The arbitrator comments.

“since the last contact had run its course ---------“

The award is in circumstances where a fixed term contract had run its course. In the case of Maseko v Jongwe Printing and Publishing Company (Pvt) Ltd. 2002 (2) ZLR 577 it was stated that to place a person who was on a fixed duration contract in the position he would have been had his contract not terminated means that he has to be paid the amount outstanding for the unexpired duration of the fixed term contract. In my view the arbitrator erred in awarding damages in circumstances were the contract had expired. For the above reasons the appeal fails and is therefore dismissed with costs.

The Cross-Appeal

Respondent is challenging the arbitrator’s finding on factual issues in the first ground  of the cross-appeal. The Supreme Court has held that a serious misdirection on the facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion. See Chinyange vs Jaggers Wholesalers SC 24/04, Hama vs NRZ 1996 (1) ZLR 664 @ 670.

The first ground of the cross-appeal is that;

“The honourable Arbitrator erred in making a finding that another person was employed in the Appellant’s place following the non-renewal of his contract. Such a finding led to the erroneous finding of law that there had been an unlawful dismissal within the meaning of Section 12B(3) of the Labour Act.”

In the case of UZ-UCSF Collaborative Research Programme in Women’s Health vs David Shamuyarira SC 10/10 it was stated that where an employer had a legitimate expectation of being re-employed, the onus is on him to prove firstly that he had a legitimate expectation to be re-engaged and secondly, that another person was engaged in his stead, that is, to do his work. The Appellant’s last contract stipulated that it would expire on 31st December 2009 and that the notice period for termination of the contract during the duration of the contract is 2 weeks. Appellant’s contract was not renewed. He claimed before the Arbitrator “three months notice pay at the rate of US$325 per month”. (See statement of claim on page 38). The Arbitrator went on to award “payment of compensation” for the three months without specifying what it was for.

In my view Appellant was not entitled to any compensation as his contract had expired. In any event if notice was required the expired contract stipulated 2 weeks. The award therefore is without basis and cannot be supported.

The Arbitrator made a factual finding that 5 people were engaged by the Respondent after the termination of Appellant’s contract. According to the Arbitrator though these people were engaged in different capacities he was convinced that the Appellant worked in various capacities. There is nothing on record to support the Arbitrator’s conclusion. In the case of UZ-UCSF Collaborative Research Programme in Women’s Health vs David Shamuyarira (supra) ZIYAMBI J.A. commented that proof that others were engaged in different capacities is insufficient for this purpose. Respondent submitted that the position occupied by Appellant before the termination of his contract by effluxion of time was still vacant. I find that no proof was proffered that Appellant was replaced. It is trite that he who alleges must prove. See Nyahondo vs Hokonya & Others 1997 (2) ZLR 457.

I find that the Arbitrator’s finding had no basis and therefore cannot be supported.

Appellant alleged that he had a legitimate expectation of the renewal of his contract. His expectation was without basis as he was on a fixed term contract. At the expiry of the fixed term, the employer has no obligation to offer the employee employment. See Chikonye & Anor vs Peterhouse 1999 (2) ZLR 329, Mbedzi vs Deputy Registrar High Court and Another SC-57-97. The finding that there was an unlawful dismissed is without basis and cannot be supported. In my view no amount of renewal of fixed term contracts will change their nature. The second ground of the cross appeal was withdrawn with a tender of costs. The cross-appeal therefore succeeds with costs.

Accordingly I order as follows:-

The appeal, being without merit, be and is hereby dismissed with costs.

The cross-appeal, being with merit, be and is hereby upheld with costs.

The arbitrator’s award be and is hereby set aside and substituted with the following:-

“The claim be and is hereby dismissed for lack of merit.”

Jessie Majome & Company – Appellant’s legal practitioners

Wintertons – Respondent-s legal practitioners