Manica Boards & Doors (Private) Limited v Kudakwashe Pisirai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/31/13
MUTARE 23RD SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/31/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/31/13

MUTARE 23RD SEPTEMBER, 2013			        CASE NO LC/MC/56/11

AND 11TH OCTOBER, 2013

MANICA BOARDS & DOORS (PRIVATE) LIMITED			Appellant

KUDAKWASHE PISIRAI							Respondent

Before The Honourable G Musariri, Judge:

For Appellant:		Ms. Y. Nyambo, Attorney

For Respondent:		Mr. D. Tandiri, Attorney

MUSARIRI, G:

On 30th August, 2011 the Honourable N.A. Mutongoreni made an arbitration award.  In terms thereof he ordered Appellant to sell a company car to Respondent or alternatively pay him the residual value of the car.  Appellant then appealed to this Court against the award.

Appellant employed Respondent from 2007 as its Human Resources Manager at Mutare.  Respondent resigned from employment on the 4th May, 2011.  At the time of resignation he had been allocated the company car in terms of Appellant’s Motor Vehicle Policy.  A copy of the Policy is filed of record.  Its paragraph 11.5 read as follows,

“In the event of terminating employment and after having used the vehicle for less than five years, the vehicle shall not be offered to the employee as it will be required elsewhere in the business.  Only Executive Managers in grades E and above who resign/retire after three (3) years of using the vehicle can purchase the vehicle at 50%(at three years) or 30% at four years) of either the cost to replace the same/similar type vehicle or the market value (AAZ) whichever is the lesser”.

Respondent asserted that having been in Grade E1 and having been allocated the car for 4 years, he was entitled to purchase it at 30% of its lowest market value.  However Appellant refused to buy that argument.  It instead argued that it had the discretion to sell or retain the vehicle.  In this case it decided to retain the vehicle.  That was the dispute which was determined by the arbitrator in favour of Respondent.

Appellant argued in this Court that the Arbitrator misinterpreted the Motor Vehicle Policy.  It relied on paragraph 11.6 of the Policy which read thus,

“When a managerial employee retires, the Managing Director may decide to allow such employee to purchase the vehicle one was using.  This will be dependent on each individual case and the circumstances prevailing at the time.  It should be noted that the Managing Director may decide to offer the retiree a vehicle other than the one he/she was using at the time of retirement.”

True, the latter provision gives the Managing Director (MD) the discretion to sell or keep the car.  However the underlined portions of the paragraph show that the discretion applies to the case of a retiring employee.  The words “retires”, “retiree” and “retirement” in the same paragraph shows that it relates specifically to retiring employees.  Respondent’s case was that of a resigning employee.  Thus he was covered under paragraph 11.5.  That paragraph does not give the Managing Director any discretion.  A proper construction of the 2nd sentence shows that the resigning manager is the subject matter.  It states the subject “can purchase the vehicle ...”  The word “can” connotes a discretion to purchase or not to purchase.  That discretion inheres in the subject, that is, the resigning manager.  It is him who had the discretion to decide whether or not to buy the car.  In this case he chose to buy.  Appellant wrongfully and unlawfully refused to sell the vehicle.  The Arbitrator came to the correct conclusion that the Respondent had a right to buy the car and accordingly provided him with an appropriate remedy.  Thus, I consider that the appeal to this Court lacks merit and must be dismissed.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

............................................

G. MUSARIRI

JUDGE