Mutasa Rural District Council v Prisca Mutenga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/09/2014
HARARE, 6 FEBRUARY 2013 &
28 FEBRUARY 2014
CASE NO LC/MC/06A/12 MTRE
JUDGMENT NO LC/MC/09/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/09/2014

HARARE, 6 FEBRUARY 2013 &		CASE NO LC/MC/06A/12 MTRE

28 FEBRUARY 2014

In the matter between:

MUTASA RURAL DISTRICT COUNCIL				APPELLANT

Versus

PRISCA MUTENGA							RESPONDENT

Before The Honourable E Muchawa	:	Judge

For the Appellant		T Mukwindidza (Legal Practitioner)

For the Respondent		D Tandiri (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award of 5 October 2011 whose operative part reads:

“… I award that the applicant be reinstated without loss of salaries and benefits. If reinstatement is not tenable, the applicant should be paid damages in lieu of reinstatement, the quantum of which can be negotiated by the parties. If they fail to agree to a quantum they should bring their positions to the arbitrator for quantification.”

The respondent was employed as a clerk by the appellant. In or around 2005 to 2006 the respondent was charged by the appellant for failure to obey a lawful instruction in that the appellant had been transferred from Penhalonga to Mutasa Rural District Council but had not reported for duty. This led to her dismissal. Aggrieved by the dismissal, the respondent approached a labour officer for conciliation. A settlement was reached on the 21 August 2006 whose terms of agreement were as follows:

“Mrs P Mutenga (“the respondent herein”) is to be reinstated and to work Head Office Mutasa Rural District Council. She is to be paid her money up to the end of December 2006 (2005)”.

It is common cause that the respondent had not then gone back to work at Mutasa Rural District Council thereafter. The appellant states that the respondent had then absconded and reneged on the certificate of settlement from 21 August 2006 to date of the claim therefore terminating the relationship and reverting to the status quo of dismissal, before the certificate of settlement. On the other hand, the respondent claims that upon reinstatement she was advised that she had been transferred from Penhalonga to Mutasa Rural District Council Offices and she pleaded with the appellant’s Chief Executive Officer who indicated they would create another position for the respondent at Penhalonga. Further the respondent contends that after reinstatement her contract was never terminated. It is the case of non-payment of salaries and benefits which was then referred to a labour officer in July 2010 and ended up before the arbitrator on 23 September 2010. That is the award which is the subject of this appeal.

The grounds of appeal are stated as follows:

The arbitrator erred and misdirected himself by entertaining a matter that had prescribed and had not been brought to his attention within two years as required by law.

The arbitrator erred by awarding reinstatement as a relief without an option/alternative of damages in lieu of reinstatement. The award is therefore defective at law.

The arbitrator grossly erred in the analysis of the evidence that was placed before him. It was apparent that the respondent had been reinstated yet she never claimed her wages from date of reinstatement. One wonders why the employee never demanded her monthly salaries despite promises by the Chief Executive Officer. The only conclusion is that the respondent was bought ought (sic) thus she never claimed for her salaries as entitled at law.

The respondent opposes the appeal and avers that it is out of time and no condonation was sought, therefore it is improperly before the court. Further it is averred that the matter had not prescribed as an unfair labour practice was continuing and in any event the ground of prescription is being raised for the first time now. It is also stated that a correct reading of the arbitral award shows that it provides for payment in lieu of reinstatement. The appellant is said to have failed to proffer evidence that they bought out the respondent and the respondent is still therefore employed by the appellant.

At the trial the respondent did not persist with the point of the appeal being out of time and chose to proceed to the merits. I will not therefore consider this point.

I propose to deal with the second ground of appeal first. I agree with the respondent that a thorough scrutiny of the arbitral award shows that it provides for the payment of damages in lieu of reinstatement. This ground of appeal is therefore misplaced and there is no merit in it.

Prescription

The respondent has taken issue with the appellant raising the issue of prescription now and not earlier before the arbitrator. The appellant contends that the defence of prescription can be raised at any stage of the proceedings. I agree with the appellant that it is permissible to raise a point of law for the first time on appeal, when the issue goes to jurisdiction rather than discretion. (See Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (SC).

Section 94 (1)(1) of the Labour Act [Cap 28:01] provides as follows:

“Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless-

It is referred to him; or

Has otherwise come to his attention;

within two years from the date when the dispute or unfair labour practice first arose.”

In subsection (2) it provides:

“Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.”

It is clear and common cause that in casu the respondent only approached a labour officer in July 2010 following a certificate of settlement of 21 August 2006. Almost four years had passed. The respondent claims the unfair labour practice was continuing then. The question before me is therefore one that relates to the ground of appeal number 3. It is to analyse the evidence before me and decide whether the respondent was reinstated and she repudiated the contract by absenting herself without a valid reason or if it was the appellant who committed an unfair labour practice by refusing to reinstate the appellant in terms of the certificate of settlement.

I am struck by the terms of the certificate of settlement which do not only state that the appellant would be reinstated but that it would be to work at the Head Office at Mutasa Rural District Council. I therefore do not understand the respondent’s assertion that it was upon reinstatement that she was advised she had been transferred from Penhalonga to Mutasa Rural District Council. She had signed the certificate of settlement. This is particularly so as the initial dispute related to the respondent’s refusal to obey the instruction to transfer to Mutasa Rural District Council. I find it therefore highly unlikely that the respondent is being truthful in claiming that she was promised by the appellant’s Chief Executive Officer that a post would be created for her in Penhalonga and that promise continued for four years even as three Chief Executive Officers changed from one Dhlakama who is alleged to have made the initial promise. More shocking is the fact that the respondent waited for those four years without receiving a salary. Further, the fact that the Chief Executive Officer was involved in signing and processing documents relating to the respondent’s payments of what is called “terminal benefits” on the voucher and a retirement claim form puts to rest the respondent’s assertion.

I agree that the appellant was unable to discharge the onus that the contract of employment was terminated by mutual agreement as no written agreement of such termination was produced. I do not agree however, that the evidence on the record proves that the respondent is still employed by the appellant. On the contrary the evidence outlined above goes to prove that the respondent failed to abide by the terms of the certificate of settlement hence the status quo prevails, being dismissal. I was referred to the case of BHP Minerals Zimbabwe(Pvt) Ltd v Takawira 1999 (2) ZLR 77 for the assertion that an employee who refuses reinstatement abandons any claim for damages in respect of the period subsequent to the date of the order. I agree with that.

In my opinion the case of City of Harare v Zimucha 1995 (1) ZLR 285 (S) which held that an employee is only entitled to remuneration during a period of absence for which he has a valid reason for his absence is relevant in casu.

I find that when the respondent failed to report for work at Mutasa Rural District Council, she was in flagrant violation of the certificate of settlement as well as her contract of employment immediately thereafter. The cause of action arose immediately after 21 August 2006, if any, and was not continuing.

The matter was therefore prescribed when it came before the labour officer. The respondent has not shown any interruption of the prescription period in terms of the law. I therefore find that the labour officer and the arbitrator had no jurisdiction to entertain the matter which had long prescribed. On this ground the appeal succeeds with costs. I therefore order as follows:

The arbitral award is set aside and substituted as follows:

“The appellant’s claim is dismissed with costs”.

Bere Brothers Legal Practitioners, appellant’s legal practitioners

Tandiri Law Chambers, respondent’s legal practitioners