Reginald Mungayi & 2 Ors v Waverley Blankets (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/772/2016
HARARE, 17 MAY 2016 &
CASE NO LC/H/APP/1068/2015
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/772/2016

HARARE, 17 MAY 2016 &				CASE NO LC/H/APP/1068/2015

2 DECEMBER 2016

In the matter between

REGINALD MUNGAYI						1ST APPLICANT

And

OBERT TAPFUMANEYI						2ND APPLICANT

And

AUGUSTIE MACHENI						3RD APPLICANT

Versus

WAVERLEY BLANKETS (PVT) LTD				RESPONDENT

Before the Honourable Chidziva J

For the Applicants	J M Bhamu (Legal Practitioner)

No Appearance for the Respondent

CHIDZIVA J:

This is an application for quantification of damages in lieu of reinstatement arising from the disposal order that was issued by this court on 8 March 2010. The order states as follows:

“(1)	The respondent’s action amounted to a lock out.

(2)	The applicants be and are hereby ordered to report for duty and resume production with immediate effect and in any event not later than 8.00 or on Monday the 8th of March 2010.

(3)	The respondent be and is hereby ordered to re-engage the employees with pay and benefits back dated to the day of dismissal.”

The brief history of this matter are that:

In 2009 a dispute arose between the employer and employees.

This court then granted a disposal order under case number LC/SCO/H/94/2009.

The applicants have made as application to this court for quantification stating that the respondent defied the direct order of the court to reinstate them to their former employment. They further indicated that such failure and/or reluctance by the respondent to re-engage the applicants as per the order is a clear indication that there was no intention to reinstate the applicants.

Their claims are as follows:

Augustine Macheri

Back pay for five years

Salary i.e. 				US$145 x 60 months

=	US$8 700-00

Damages for two years

Salary i.e.				US$145 x 24 months

=	US$  3 480-00

Total Back pay and Damages		=	US$12 180-00

(ii)	Obert Tapfumanei

Back pay for five years

Salary i.e.				US$145 x 60 months

=	US$8 700-00

Damages for two years salary i.e.      US$145 x 24 months

=	US$3 480-00

Total Back pay and Damages		=	US$12 180-00

(iii)	Reginald Mungayi

Back pay for five years

Salary i.e. US$159 x 60 moths	=	US$ 9 540-00

Damages for 2 years

Salary i.e. 					US$159 x 24 months

=	US$3 816-00

Total Back pay and damages		=	US$13 356-00

The respondents in response stated that:

The claim has prescribed since a period of five years has passed since the dispute arose and the applicants have done nothing to enforce their rights.

After the court order parties agreed that the respondent was to re-engage the employees on a monthly behavioural assessment contract and that the employees not considered on the behavioural assessment contract were to be dealt with separately.

The agreement was to be filed at the Labour Court to enable the withdrawal of the pending case (Annexture B)

After the agreement the applicants were paid their dues by the respondent.

The respondent therefore prayed for the dismissal of the application with costs.

It is common cause that:

The applicants received their terminal benefits in January 2011.

The applicants filed the application for quantification of damages on 1 September 2015.

There is no court order filed of record showing the basis of the damages to be quantified.

What is to be decided is whether (i) the applicants are entitled to any damages in this case.

When the parties appeared before this court the applicants indicated that they were abandoning the claim for two years damages.

The applicants have approached this court by way of application for quantification of damages. However the papers filed of record show that no court or tribunal awarded them those damages.

Section 94 of the Labour Act states that:

“(1) (i)	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.”

The record shows that on 17 December 2010 the applicants and the respondent reached an out of court settlement. It was agreed that some of the employees would be re-engaged on a monthly behavioural assessment contract subject to the Code of Conduct SI 102 of 2002. Those that were not considered on the behavioural assessment contract were not re-engaged. The Zimbabwe Textile Workers Union represented them in this settlement. On 19 January 2011 the applicants’ terminal benefits amounting to $800-00 were paid to Mr Makono of ZTWU who was representing the applicants. The record shows that from 19 January to 30 January 2011 the applicants signed for their terminal benefits. All this was done in accordance with the settlement.

The applicants’ actions therefore amounted to a waiver and this waiver deprives this court of the jurisdiction to entertain this matter.

R H Christie in his book he Law of Contract in South Africa 3rd ed at 495 – 496 describe waiver as follows:

“… when one of the parties by his words, actions or inaction has evinced an intention not to enforce one or more or all his rights under the contract. We select which ever word seems most appropriate from a list which includes, abandoned acquiescence, release, remuneration surrender and waiver of those words by for the most commonly used is waiver which is regarded in any case as interchangeable with any of the other words…”.

By accepting the terminal benefits after the settlement agreement the applicants indicated that they were not going to enforce their rights under the contract.

EBRAHIM JA in Chiadzwa & Ors v Zisco Ltd 1998 (2) ZLR 368 at …… explained the principles applicable in abandoning of employees right of action as follows:

“In cases where the defendant relies on waiver as a defence what is required by the defendant is that he must allege and prove a decision by the plaintiff to abandon the right which is being asserted against the defendant. The decision must have been converged to the defendant.”

The case of Traub v Baclays National Bank (Pvt) Ltd 1983 (3) SA 619 at 63 states the two ways that the decision to abandon a legal right can be shown as follows:

An express abandonment of the right or

An implied abandonment

In this case as indicated above the applicants clearly accepted their terminal benefits. It therefore follows that this court no longer has the jurisdiction to entertain this matter.

If the applicants were not satisfied with what they were offered they should have rejected the offer and proceeded to institute the appropriate proceedings against the respondent.

The proceedings to be instituted were to be referred to the labour officer within two years from the date when the dispute arose as provided for under section 94 (2) of the Labour Act. The applicant has approached this court after a period in excess of two years. This means that the matter has prescribed in terms of the provisions of section 94 (1) of the Labour Act section 94 (3) states that:

“For the purpose of subsection (i) a dispute or unfair labour practice shall be deemed to have first arisen on a date when—

The acts of omissions forming the subject of the dispute or unfair labour practice first occurred; or

The party wishing to refer the dispute or unfair labour practice to the labour officer first became aware, of the acts or omissions referred to in paragraph (a) if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.”

When the applicants were paid their terminal benefits they very well knew that an agreement had been entered between their representative and the employer. The matter has already been resolved by efluxion of time. This court therefore has no jurisdiction to entertain the matter.

In conclusion therefore this court finds that:

The applicants waived their rights by receiving their terminal benefits.

The dispute has prescribed and this court has no jurisdiction to entertain it.

It is therefore ordered that:

The application for quantification of damages be and is hereby dismissed with costs.

Tamuka Moyo Attorneys, applicants’ legal practitioners