National Pharmaceutical Company (Pvt) Ltd v Raguel Mhombeni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 30 SEPTEMBER, 2024
CASE NO LC/H/715/24
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 30 SEPTEMBER, 2024

JUDGMENT NO LC/H//2024

CASE NO LC/H/715/24

In the matter between:-

NATIONAL PHARMACEUTICAL COMPANY (PVT)	APPELLANT COMPANY

And

RAGUEL MHOMBENI	RESPONDENT

Before the Honourable Kudya J

For the Applicant

For the Respondent

P. Dube ((Legal Practitioner)

S.T. Mutema (Legal Practitioner)

KUDYA, J:

This is an appeal at the instance of the appellant employer and a cross appeal at the instance of the respondent employee. Both parties are aggrieved by the labour officer’s decision in a labour dispute between them. On the hearing date of the appeal and the cross appeal the employee raised 4 preliminary points. The employer had in turn raised a single preliminary point attacking the record of proceedings but dropped this part when the appeal and the cross appeal were being heard. This left for determination the points in limine at the instance of the employee and the merits of the appeal and cross appeal. For expediency the parties were allowed to address the court both on the points in limine and on the merits so that all issued could be ruled on at the same time. This judgment therefore addressed the points in limine raised by the employee and the merits of both the appeal and the cross appeal.

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Points in limine

Four parts were taken by the employee. The first p0int is that the appeal was noted out of time the second one is that no condonation was sought before the late appeal was mounted. The third point was that the employer was appealing against an uncontested quantification award by the labour officer since quantification was not opposed before the labour officer so it was taken that quantification was admitted. The fourth point was that the employee needed leave to file the appeal out of times

In response to the points the appellant maintained that it had appealed within time on compliance with Section 128 of the Labour Amendment Act 11/23 which states that the right of appeal only kicks in after the notice of registration of the ruling is made. It also hastened to mention that it did file the appeal on 5/7/24 which is the date when the dies induciae for filing the same expired. It mentioned further that the Registrar only stamped the appeal on 8/7/24 yet it (the employer) had already filed same on time. The employer also stated that the quantification award was not conceded to hence the appeal.

A reading of the points in limine demonstrated clearly that points one, two and four spoke to the same issue that the appeal was out of time. A reading of the papers in the IECMS system show that indeed the appeal was filed within the permitted dies but sadly issued belatedly. The law is clear that the date of filing is what shall be used for purposes of calculating the period within which any action should have been taken. See Definion section of S I3/23. It is clear that the employer acted within the prescribed period. The points in limine about the late appeal being without foundation be and are hereby dismissed.

As regards the quantification of the award it is clear from the appeal mounted by the employer that what the labour officer awarded was contested. There is therefore be no basis to allege that the quantification process was unopposed. Pleadings before labour officer also show that the employer was contesting the calculus by the employee. The third point also lacking in merit should fail. It is clear that all the points in limine lacked merit as explained above. They should therefore fail in their entirety.

Merits of appeal

The employer stated the following in its grounds of appeal:

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1. The tribunal quo erred at law in finding that the respondent’s contract of employment could not be terminated on notice without reasons not withstanding that it was a fixed term contract of employment.

2.	 The tribunal a quo erred at law by finding that parties had waived the right to terminate on notice notwithstanding that the Labour Act as well as the contract between the parties allowed such a course.

3. The tribunal a quo erred at law by proceeding to issue a draft ruling not withstanding that a proper conciliation process was not carried out.

4. The tribunal a quo erred and misdirected itself in awarding damages for loss of salaries and benefits not withstanding that as a trial tribunal it did not hear parties on mitigation of loss and other relevant pieces of evidence related to quantification of damages. In the result the employer prayed that: The appeal be allowed with costs on the legal practitioner client scale.

5. The draft ruling be set aside and substituted with a dismissed of the employees claim for unfair termination of employment contact and nonpayment of contract benefits be dismissed.

In response to the appeal the employee maintained the following

Grounds one and 3

The notice of termination stated specifically that termination was done for the employment contract as read with Section 12 4(b) (a) of the Labour Act. The contact specified that upon completion of 3 months probation the employment agreement was deemed to be on a permanent establishment for the rest of the fixed duration. It could therefore not be terminated on notice because parties had put a caveat to the open ended right to terminate on notice. The Labour Officer’s decision was therefore correct as the parties waived their right to terminate on notice in respect of clause 21 and 2.2 of the agreement. This was permissible at law as parties were at liberty to determine how their agreement could be ended. The contract also had a condition precedent that if termination had to be done reasons for such should be availed in writing. Such did not happen so termination was concluded to be irregular. A fixed term contract is by its nature a contract on notice as it contains specific dates for commencement and termination. No other notice is required. The contract in the case at hand

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was terminated 4 years 6 months prior to the contractually agreed date of termination. The Labour Officer was therefore correct to hold that the termination on notice was unlawful.

Ground 2

Challenge on the competency of issuing a certificate of n settlement amid incomplete conciliation is not founded. Where no conciliation is conciliation is concluded within 30 days there would be no need to continue with same post the 30 days. A certificate of no settlement was issued on account of expiry of the time limit within which it had to be conducted. Beside the employment consented to the issuing of the certificate. Employee refused to consent to 2nd extension of conciliation because employer had indicated that it was not inclined to settle the dispute.

Ground 4

The 17 items that appeared on the claim were not contested by the employer. Such non-contest meant these were admitted. Labour Officer was therefore correct to accept the claim as uncontested. Her only error was that she did not make an award for interest, costs and inflation as claimed by the employee. In the result the employee prayed that the appeal be dismissed with costs on the attorney client scale.

It is settled that a trier of fact’s discretion can only be interfered with when there is demonstrable gross unreasonableness in the exercise of such discretion. See Mettallon Gold Zimbabwe vs Golden Millon Pvt Let SC-12-15

See also Barross vs Chimpondah 1999 (1) ZLR 58 (S)

Applying the law to the facts of the matter at … the court observed the following about the main appeal;-

Grounds One and Three

It is the employer’s contention that the Labour Officer was wrong to find that the contract of employment could not be terminated on notice without reasons. A clear reading of the case of Nyamande vs Zuva Petroleum SC-16-15 shows clearly that termination on notice is permissible as a common law construct Equally Section 12 (4) (a) (c) of Labour Amendment No 5 of 2015 states that a contract of a fixed duration can be terminated on notice. It is important to note the distinction between this section and Section 12 (4) a of Labour Amendment Act No 11 of 2023.

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On account of the fact that the case at hand happened during the era of amendment No 5 of 2015 it follows that provisions that appear on that statute are what govern the case under discussion. It is clear from this provision that termination on notice can be carried out and such termination is in itself lawful termination. The argument that the parties created a condition precedent that such could only happen if reasons were furnished does not find support in the papers filed of record. It was therefore remiss for the Labour Officer to rule that the employer could not validly terminate the contract. The conclusion was clearly out of the step with the law so it should be vacated.

Intricately linked with ground one above is ground 3 which states that parties had waived their right to terminate on notice. The constituents of waive are set out clearly in the case of Chidziva vs Zisco Steel 1997(2) ZLR368(S). The employer opined that the Labour Officer incorrectly applied the waiver principle. If indeed the employee had to rely and it, he had to prove same. See Louis vs Rutherfod 1924 AD 261.

A reading of clause 2 of the contract of employment stated clearly that the contract could be terminated on notice. The employer gave the employee the requisite 3 months’ notice spelt out in the contract so there was nothing unlawful about the termination. As stated earlier the very act of termination on notice was a lawful ground for the parties’ separation. There is nothing on record that shows that the parties waived such a right. It was therefore irregular for the Labour Officer to conclude that the employer had waived its rights to termination on notice. The ground being will be founded should succeed.

Ground 2

This was essentially a challenge of the process leading to the decision. The correct remedy for such a challenge is a review. The ground being bad at law should be struck off.

Ground 4

It is settled that damages awards should not be thumb sucked. See Delta vs Murandu SC38/15. In the case at hand the Labour Officer concluded that the employer had acceded to the figures. This is in stark contrast to the submissions before her when the employer stated that if she concluded that the employee was entitled to anything the needed a chance to challenge such. Such was not done so the court wonders how the labour officer concluded that the employee was entitled to what he was claiming. The fact that the employer was contesting the award finds expression even in the confirmation proceedings which were done before the

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Labour Court where issues around medical aid were argued. It is clear that the conclusion that the employer had not contested the figures was clearly without foundation. Where a tribunal fails to determine according to the law and facts the decision arising out of such should be vacated. See Hama vs NRZ1996(1) ZLR664(S). It is clear from the above discussion that the award was thumb sucked should so it cannot stand at law. The ground also being merited should succeed.

In the ultimate the grounds of appeal 1, 3 and 4 being merited should succeed.

Having concluded the main appeal what remains for determination is the cross appeal at the instance of the employee. The cross appellant’s grounds can be summarised as follows:-

1. Labour Officer erred by not awarding 5% per annum interest on the award of damages as required by law.

2. Labour Officer erred by not determining issue of costs that was placed before her for determination.

3. Labour Officer erred by not factoring inflation on the damages award.

In the result the employee prayed that the cross appeal be allowed with costs on the attorney client	scale, that the labour officer decision be upheld but with the modification that preliminary point about conciliation be dismissed as being without merit, that specific performance be granted to the employee as termination of his contract was unlawful, that employer be ordered to reinstate the employee as procurement management with full pay and benefits or that it pays to the employee damages in place of reinstatement, employer not having controverted computation of the damages,that employer pays to the employee salaries and benefits of the 51 remaining months of the contract to the tune of USD 935511,57, 5 % interest per annum from 7/8/20 date of unlawful termination, capitalamountbe paid at 285% per annum inflation rate as at 7/8/2020 and costs of suit for proceedings before the Labour Officer per S1/54/14 Legal Practitioner Contingency fee agreement at 25% of the amount awarded to the claimant.

In response to the cross appeal the employment maintained that:-

In limine the cross appeal must be struck off the roll with costs for not complying with rule 19 Labour Court Rules stipulating that the notice of appeal should be lodged together with the

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minutes of the proceedings of the hearing undertaken to enquire into the course of the complaint.

On the merits the employer stated that:-Ground 1

Interest only arises when there is an agreement to that effect or when the litigant has advanced proper reasons and grounds for such interest. The prescribed rate of interest will be invoked when there is prejudice suffered by the victorious party as a result of breach occasioned by the losing party. The employee did not prove before the labour officer that a breach occurred that prejudiced him to a level that only an award of interest could make him recoup any loss whatsoever. The court may if it considers it fair not to order interest on a judgment not order such. The employee filed to prove before the labour officer that he was entitled to interest in the circumstances. The ground of appeal on interest is misplaced and should be dismissed without more.

Ground 2

Once a court of law fails to relate to issues placed before it then the resultant order is irregular. The labour officer did not pronounce or decide on the question o costs. The employee can therefore not be granted relief on that part by the appellate court. The matter may be referred for a hearing denovo so that the labour officer may hear and determine all issues placed before her. The employee cannot be granted relief on a point that has not yet being decided or related to by an inferior court. The appellate court cannot be called upon to pronounce that the court quo erred on the quantification of costs of suit when that point has not yet been decided. The matter must be referred de novo for a fresh conciliation so that the labour officer may ventilate on all issues placed before her.

Ground 3

A court must only deal with issues placed before it only. The question of factoring in inflation on the damages award was not placed before the labour officer. As such the labour officer cannot be faulted for not dealing with an issue not placed before her. A court cannot competently decide on an issue not pleaded by the parties if such was mooted to parties and submissions to that effect were not entertained. In the case at hand, the court never invited the parties to ventilate the point of inflation. Accordingly the labour officer cannot be faulted for failing to decide an issue which was never placed before her. The ground of cross appeal is meritless and ought to be dismissed accordingly.

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Costs

The cross appeal is frivolous . It is not backed by good legal reasoning and as such the employer has incurred unnecessary costs defending itself against the employee. The employee should not be allowed to abuse court process and waste the employer’s and the court’s time with a frivolous cross appeal. In the result the employer prayed that the cross appeal be dismissed with costs on the punitive scale of attorney and client.

Each of the cross-appeal grounds are discussed below; -

1. Interest

It is settled that a claim for interest has to be pleaded and to be supported by evidence. See Chimeru v Chimeru HC Masvingo 15/24. In the case at hand the employee claims interest as of right but that is not supported by law. The claim being without foundation should fail.

2.Inflation

The comments made on interest apply to this claim with equalforce. The ground should therefore fail.

3 Contingency fees

On account of the setting aside of the labour officer’s decision a discussion of this issue is therefore rendered academic. The claim is therefore dismissed.

Costs

It is settled that punitive costs have to be pleaded and supported. See Mahembe vs Matambo HCB 322/02. The court accepts that the labour officer should have ruled on the question of costs but she did not. As indicated in the cross appeal she did not only err on costs but even on the very substance of the issues which were before her. This court cannot award the costs which should have been determined by the labour officer. Even for the instant case none of the parties has demonstrated to the court why apunitive costs award has to be made. On account of the partial success of the main appeal and the complete failure of the cross appeal it is just and equitable that each party be made to bear its own costs.

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IT IS ORDERED THAT

Main appeal grounds 1, 3 and 4 being merited they be and hereby succeed. Main appeal ground 2 being badatlaw it be and is hereby struckoff. All cross-appeal grounds being without merit they be and are hereby dismissed. The Labour Officer’s decision awarding the employee damages for premature termination of the employee’s contract of employment be and is hereby set aside in its entirety. Each party bears own costs

DMH Law Chambers Appellant’s Legal Practitioners

Stansilous & Associates Law Firm, 1st Respondent’s Legal Practitioners

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