Maranatha Christian High School v Martin Mutimusakwa & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/617/16
HELD AT HARARE ON 29TH JUNE, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/617/16

HELD AT HARARE ON 29TH JUNE, 2016 	    CASE NO. LC/H/152/16

AND 7TH OCTOBER, 2016

In the matter between:-

MARANATHA CHRISTIAN HIGH SCHOOL			Appellant

And

MARTIN MUTIMUSAKWA 					1st Respondent

LOVEMORE MWANAWENYU					2nd Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr I. Mataka (Legal Practitioner)

For Respondent	:	Mr N. Madya (Legal Practitioner)

MHURI J.

The brief background to this case is that, Respondents were in Appellant’s employ as teachers for periods of 2 and 3 years respectively.

In December 2014 both resigned from employment with immediate effect without giving the requisite notice.

After resigning, the Respondents lodged a complaint with the Labour Officer claiming non-payment of salaries.  Conciliation failed and as a result, the dispute was referred to arbitration.

The issues for determination by the Arbitrator were stated as:

Were claimants (Respondents) entitled to payment of salary arrears and cash in lieu of leave?

Were claimants (Respondents) obliged to give notice.

and

The appropriate remedy.

In this analysis of the evidence, the Arbitrator found that:

The Respondents were owed salaries.

Respondents had accrued some leave days (1st Respondent 60 days and 2nd Respondent 90 days) for which Appellant was to pay them cash in lieu.

In terms of Section 12(7) of the Labour Act [Chapter 28:01] (THE ACT), Respondents were not obliged to pay Appellant cash in lieu of notice.

Aggrieved by the findings and award, Appellant filed this appeal on three main grounds.  These can be summarised as follows:

That the Arbitrator grossly misdirected himself in finding that Respondents were not obligated to pay compensation for resigning without giving notice.

That the Arbitrator grossly erred in finding that the Respondents were entitled to payment of cash in lieu of leave for their first year in employment.

That the Arbitrator erred in finding that Respondents were entitled to leave days when they failed to go on leave or claim cash for the year the leave was due.

I will deal with the grounds in turn.

As regards the first ground, one has to look at the party’s contract of employment and the relevant provision of the Act.  The parties entered into and were bound by a contract of employment.

Paragraph 11 of the contract deals with termination of employment.  In particular paragraph 11.2 reads –

“The Employee or the Employer may terminate this contract of employment by giving three (3) calendar months notice of intention to terminate this contract.”

Section 12 of the Act also provides for notice in the event of termination of employment by either party.  Subsection (4) of the said section provides:

“Except where longer period of notice has been provided for or under a contract of employment or in any relevant enactment and subject to subsection 5, 6 & 7, notice of the contract of employment to be given by either party shall be –

three months in the case of a contract without limit of time or a contract for a period of two years or more;

Two months in the case of a contract for a period of one year or more but less than two years;

One month in the case of a contract for a period six months or more but less than one year;

……………………………….

……………………………….”

The Arbitrator was alive to these provisions which speak to notice.

Section 11 of the parties’ contract of employment does not provide remedy where either party contravenes the provision that requires them to give notice.

Subsection (7) of section 12 of the Act provides a remedy to the employee where termination is at the initiative of the employer.

It reads:

“Notwithstanding subsection (4) or (5), the parties to any contract of employment may, by mutual agreement, waive the right to notice:

Provided that where the termination is at the initiative of the employer, the employee shall have a right to payment for a period corresponding to the appropriate period of notice required in terms of subsection (4) or (5).”  (Emphasis my own)

It is on the basis of the above provision that the Arbitrator found that Appellant was obliged to pay Respondents cash in lieu of notice.

Did the Arbitrator misdirect himself in his analysis and finding?  In my considered view, I find that he did.  Both the contract of employment and the Act provide that either party gives the other notice.  In this regard the Arbitrator did not err in finding so.

But where there is a breach of these provisions, by either party, what is the other party’s recourse?  In the case of an employer breaking this provision, it is common cause that the employee has a right to institute proceedings for unlawful dismissal in the appropriate forum and inter alia claim cash in lieu of notice.  In the case of an employee breaching the provision like what happened in casu, the employer has a common law right to sue for damages for breach of contract in the appropriate forum.

My reading and understanding of subsection (7) is that it applies where the parties mutually agree to waive the requirement to give notice.  Where the employer intends to terminate the contract of employment with immediate effect, approaches the employee and makes its intention known to him and both agree that the employee does not have to serve the period of notice, it is under these circumstances that in terms of the proviso to subsection (7) that the employer is obliged to pay the employee cash in lieu of notice.  This proviso does not apply to an employee who has decided to terminate his contract of employment, approaches the employer and makes his intention known and both agree to waive the serving of notice.  The employee is not obliged to pay the employer cash in lieu of notice.  Where there has been a breach of the provisions as happened in this case, no matter how aggrieved the employer is, in terms of Section 12A subsection (6) the employer is prohibited from making any deduction in respect of the non-giving of notice by the employee.  Notice is not one of the situations covered for which deduction or set off can be made by the employer.

As alluded to earlier and as both parties are in agreement, recourse for the Appellant is in terms of the common law to recover damages.

The first ground of appeal is with merit and I uphold it.

As regards the second ground, it is clear from section 9 of the parties’ contract of employment that vacation leave is not provided for.  Section 9.1.1 provides for special leave of 12 working days.  It provides that in addition to vacation leave an employee is entitled to occasional leave of 12 days in respect of each completed year of service.

Section 9.1.2 provides the times and conditions when such leave can be taken.

Section 9.1.3 puts restrictions to the taking of such leave.  It provides –

“The employee shall not be entitled to accumulate or commute such leave, which shall be forfeited unless it is taken during the financial year in which it accrues.”

(Underlining is for emphasis).

It is very clear that these provisions relate not at all to vacation leave but occasional leave.

Since the contract of employment does not provide for vacation leaver specifically, resort is to be had to sections 22 of the CBA, Welfare and Educational Institutions Statutory Instrument 102 of 2014 (The CBA) and the Act.

Subsection (2) of Section 22 of the CBA provides for the number of days an employee can accrue per month.

Subsection (5) provides –

“An employee in his or her first year of employment shall accumulate normal vacation leave but shall not go on such leave during that first year, except with the consent of the employer.”  (Emphasis added).

The above shows that leave is accumulated but cannot be taken during the first year.

Relying on this provision, the Arbitrator rejected Appellant’s assertion that Respondents had not accrued leave during the first year of employment.  He in turn awarded that Respondents be paid cash in lieu of leave for the first year of Respondents’ employment.

Section 14A of the Act provides for vacation leave.  In subsection (1) it defines “qualifying service”.  It states:

“(1)	“qualifying service”; in relation to vacation leave accrued by an employee, means any period of employment following the completion of the employee’s first year of employment with an employer.”

Subsection (2) states:

“Unless more favourable conditions have been provided for in any employment contact or in any enactment, paid vacation leave shall accrue in terms of this section to an employee at the rate of one twelfth of his qualifying service in each year of employment, subject to a maximum accrual of ninety days paid vacation leave.

Provided………..”

The above subsection in my view relates to the number of days (rate) an employee can accrue.  If the contract or CBA provides a higher number of days to be accrued per month than those provided in the Act, then the provision of the contract or CBA prevails, but if they are lower, then the provision of the Act prevails.

The favourable conditions referred to in this provision do not apply to the accumulation of days in the first year.

A reading of both Section 14A (1) and Section 22(5) shows that the two are inconsistent with each other.  The Act stating that an employee does not accrue leave in the first year and the CBA stating that an employee accumulates leave in the first year.

Section 74 Subsection (5) addresses situations where there is an inconsistence between the Act and a CBA.  It reads:

“A Collective Bargaining Agreement shall not contain any provision which is inconsistent with this Act or any other enactment and any Collective Bargaining Agreement which contains any such provision shall, to the extent of such inconsistency be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with this Act or such other enactment.”

Section 2A (PURPOSE OF ACT) provides in subsection (3) that the Act shall prevail over any other enactment inconsistent with it.

To that end therefore the CBA’s provision being inconsistent with the provision in the Act, the provision of the latter which provides that leave is not accruable during the first year of employment prevails.  I find in that regard, that Appellant’s second ground of appeal has merit.  Respondents did not have any leave days due to them in the first year therefore they were not entitled to payment of cash in lieu of 30 days.  The leave days accrued in the second and third years of employment were not in issue.

As regards the third ground, as referred to earlier in this judgment, forfeiture of leave days not taken during the year, is only applicable to occasional leave (12 days).

Section 22 subsection (9) of the CBA provides–

“Every employee whose employment is terminated, for any reason whatsoever shall be entitled to be paid the cash equivalent of any accumulated leave”

Section 13 of the Act provides in subsection (1) that –

“Subject to this Act or any regulations made in terms of this act, whether any person –

is dismissed ………………..

resigns………………………..

is incapacitated……………

dies;

he or his estate, as the case may be shall, be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death as the case may be, including benefits with respect to any outstanding vacation and notice period ……………………”  (Emphasis added).

By not taking leave during their tenure of employment, Respondents did not waive nor forfeit them.  They were therefore entitled to payment of cash in lieu of leave.  The Arbitrator did not err in granting payment in lieu and to that end Appellant’s third ground of appeal is without merit and cannot be upheld.

In his analysis, the Arbitrator made a finding that first Respondent had accrued 60 days leave and second Respondent 90 days.  He then awarded that they each be paid cash in lieu of those days.

In view of my findings, the Arbitrator’s findings and part of the award are to be set aside, and substituted with the finding that first Respondent had accrued 30 days and second Respondent 60 days.  Consequently, the award is amended to read –

“The Respondent is to pay 1st claimant US$2 800,00 being outstanding December 2014 salary and cash in lieu of 30 days leave; whilst the 2nd claimant be paid US$4 800,00 being the accrued salaries for November and December, 2014 and cash in lieu of leave 60 days”.

CHAMBATI MATAKA & MAKONESE – Appellant’s legal practitioners

WINTERTONS – Respondent’s legal practitioners