Marlborough High School Development Committee v Unice Mudewa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/15/25
HARARE, 01 OCTOBER 2024 AND
15 JANUARY 2025
CASE NO R-LC/H/1044/23
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/15/25

HARARE, 01 OCTOBER 2024 AND

15 JANUARY 2025	CASE NO R-LC/H/1044/23

MARLBOROUGH HIGH SCHOOL	APPELLANT DEVELOPMENT COMMITTEE

UNICE MUDEWA	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- S. Chako, Attorney

For Respondent	- T. Muzana, Attorney

MUSARIRI, J:

On 11th December 2023 at Harare, Designated Agent A Chimedza issued a determination. He ordered appellant to reinstate respondent or pay him damages in lieu of reinstatement. Appellant then appealed the determination to this Court. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01(hereafter called the Act). Respondent opposed the appeal. The grounds of appeal were quartet thus,

“ 1. The Designated Agent (DA) erred at law in entertaining a matter when he had no legal authority to do so in light of the provisions of Section 56 of the Labour Act.

The DA erred on the facts and at law in holding that the Respondent was unlawfully terminated when evidence showed that there was a transfer of undertaking prompting termination of the Respondent’s employment contract.

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

The DA erred on the facts and at law in failing to make a finding that the Respondent waived her right to challenge the termination of her employment contract.

The DA erred on the facts and at law in awarding damages in lieu of re-reinstatement when.

The Respondent had not sought such relief in her prayer;

It was proved that the Respondent had already mitigated her loss as at the date of reinstatement.’’

On the basis of these grounds, Appellant prayed that the DA’s determination be set aside and substituted with the following,

“ The claim for unlawful termination be and is hereby dismissed.” The pertinent portions of Respondent’s opposing affidavit countered,

“5. Ad Ground 1

The Respondent’s employment contract was terminated unlawfully by the Appellant through a letter dated 28 April 2023 and therefore the Designated Agent (DA) had the authority to hear the matter.

Ad Ground 2

The Appellant is misleading the honourable court as there is no legal person known as Vibrant Projects and therefore it is impossible for the Appellant to transfer business to a non-existent person. The attached letters shows that the Respondent’s contract of employment was terminated and the letter actually shows that the Appellant’s argues that it paid terminal benefits yet it is saying it transferred the Respondent to a new entity.

Ad Ground 3

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

The Respondent never waived her right to challenge termination of her

employment…Through this ground the Appellant is agreeing that it terminated the agreement.

Ad Ground 4

Appellant is aware that an employer cannot be forced to work with an employee whom it does not want to work with and therefore where the DA has rightfully concluded that the Respondent has been unlawfully terminated he is duty bound to order reinstatement or damages.’’

The grounds of appeal shall be deal with ad seriatim.

1st Ground

Appellant relied on a judgment of this court

DGL Investments v Ndlovu LC/MT70/23 Per Moya-Matshanga J

“ The (Labour) amendment was promulgated on 14 July 2023. The Designated Agent made the determination on 31/07/23. Although he had already heard the matter prior, at the time of making the determination he no-longer had the mandate. His employment council, under whose auspices he operated, had ceased to exist with the promulgation of the Amendment Act on 14 July 2023. There are no provisions in that Act that allow him to render his determination post the promulgation date.

The respondent did not oppose the 2nd point in limine.

Having looked at the Labour Amendment Act No. 11 of 2023. It is clear that voluntary Employment Councils ceased to exist on the promulgation of the Act on 14 July 2023.’’

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

By parity of reasoning, Appellant argued that the determination by the DA in casu on 11 December cannot stand because the (voluntary) Employment Council the DA worked under had ceased to exist. Prior to the Labour Amendment Act No 11 of 2023 (the Amendment), voluntary employment councils were set up under section 56 of the Act. Section 23 of the Amendment repealed section 56 and substituted a new one. The new subsection 3 repeats virtually word for word the old section 56. That effectively means that voluntary employment

councils have not been abolished. What has changed are the additional provisions in subsections

(1) and (2) and (4) to (9)

which now apply to the said councils. Clearly the Court’s take on S56 in the DGL case supra is wrong probably because the court did not have the benefit of full argument on the point as the respondent therein did not oppose the point.

2nd Ground

Appellant states that Respondent was transferred whilst Respondent says he was terminated. The alleged transfer is contained in appellant’s letter to respondent dated 28 April 2023 which reads,

“Re:Abolition of Post of a Tuck shop Attendant at Marlborough High School with effect from 1 May 2023.

I regret to give you notice of termination of contract of employment in terms of section 12(4a)(d) of the Labour Act as a result of abolition of post of a tuck-shop attendant effective 1 May 2023.

This notice has been necessitated by the fact that the tuck-shop has been handed over to the teachers who are the new operators. As you are aware, the handover and takeover of the tuck shop in which you participated was done on 22 March 2023.

As a result of this development the post of tuck-shop attendant is no longer existing under Marlborough High School SDC therefore abolished. Your terminal benefits will be calculated in terms of section 12c of the Labour Act.’’

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

A transfer did take place. But it was transfer of the business and certainly not the employee. The letter clearly and consistently speaks to a termination. In any event if it was meant to transfer the employee the employer would quote section 16 of the Act which deals with rights of employees upon transfer of undertaking. Instead, appellant referenced section 12(4a)(d) which deals with termination upon retrenchment.

3rd Ground

Appellant argued that Respondent waived his right to challenge her termination. The argument is set out in appellant’s heads of argument thus,

“21 In any event, there is evidence showing that the Respondent was paid her terminal benefits which she does not deny having received. Having accepted her terminal benefits without reservation, the Respondent waived her right to challenge termination of her

employment contract.”

It is apparent that appellant failed to retrench respondent lawfully per the section 12(4a)(d) it relied on. Section 12C of the Act which ideals with retrenchment was not cited or complied with. Failure to comply with the mandatory/peremptory requirements of section 12(4a) renders the purported termination a nullity. A nullity cannot be waived . See

Choga v Johnstons 1998(2)zlr560(H)

Per Chatikobo J at 565D-F

“I perceive the words, I have emphasized to mean, in modern or local parlance, that the issue of waiver or acquiescence or consent does not arise where the act complained of is a nullity…

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

It is my firm view, therefore, that ‘action which is ultra vires is unauthorized by law,

outside jurisdiction, null and void, and of no legal effect’ and consequently not condonable.”

4th Ground

Appellant firstly argued that DA awarded the relief of damages which had not been asked for. The primary remedy for unlawful termination of employment is reinstatement. The reinstatement must be coupled with damages in lieu of the reinstatement. That much is trite law which has been reinforced by several case authorities. In other words the DA was obliged to award the alternative of damages to the reinstatement he ordered.

Appellant also argued that it was proved that respondent had mitigated her loss. The argument is simply premature. The DA ordered the parties to negotiate damages in lieu of reinstatement and failing agreement to revert to him for quantification. Therefore a proper quantification is yet to be done by the DA as the parties apparently failed to agree within the 14 days set.

Conclusion

All the issues raised by the grounds of appeal resolve against Appellant. Therefore its appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

JUDGMENT NO LC/H/15/25 CASE NO R- LC/H/1044/23

Appellant shall pay 50% of Respondent’s costs of suit.

J-U-D-G-E