Riozim Limited V Johannes Manyemwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/736/2016
HARARE, 13 MAY 2016
CASE NO LC/H/108/2015
18 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/736/2016

HARARE, 13 MAY 2016 &					   CASE NO LC/H/108/2015

18 NOVEMBER 2016

In the matter between

RIOZIM LIMITED								APPELLANT

And

JOHANNES MANYEMWE						RESPONDENT

Before the Honourable Makamure J

For the Appellant Mr R. Moyo (Legal Practitioner)

For the Respondent Mr Tizirai - Chapwanya (Legal Practitioner)

MAKAMURE J:

This is an appeal against a decision by an arbitrator. After reading the papers and hearing counsel I granted the appeal. The following are the reasons

The respondent is a former employee of the appellant. During the tenure of his employment he was entitled to various benefits. One of the benefits was a return business flight to the United Kingdom on British Airways every two years. He did not make the trip but after retirement he decided to claim compensation for his failure to use this benefit. At the arbitral stage the Learned Arbitrator granted the claim. This aggrieved the appellant. It appeals on the following grounds:

“1.	The Honourable Arbitrator misdirected herself on a point of law when she dismissed the appellant’s argument that the respondent’s failure to proceed on these trips amounted to a waiver of his rights which disentitles him from purporting to assert those rights as an afterthought and on a later date.

2.	The Honourable Arbitrator erred on his interpretation of the fact it being such a gross misdirection on the facts that a reasonable court properly applying its mind would never have come to such a conclusion. Such gross misdirection on the facts amounting to a point of law. This being that the Honourable Arbitrator found that the Respondent did not get the opportunity to travel to the United Kingdom at the relevant time when no such allegation let alone evidence was made showing that the respondent had not obtained the opportunity.

3.	In any event, the Honourable Arbitrator erred on a point of law when she awarded a monetary payment to the respondent. It was a misdirection in law to award a monetary compensation in circumstances where no evidence was led to show that such monetary compensation claimed equated to the value of the tickets in question.’’

The appellant prays that the arbitral award be overturned and be substituted with the following:

“All the claimant’s claims be and are hereby dismissed in their entirety.”

It is common cause that the appellant failed to proceed on the business trips as expected in terms of his contract with the respondent. He now wants to claim monetary compensation following his failure to take the trips. He was forced to go on leave pending retirement. However even he was on leave, he was still entitled to his trips because his contract still subsisted. He has since retired. He now seeks to enforce an entitlement which he failed to enforce during the subsistence of the contract. He and his former employer failed to agree regarding his claim and this led to arbitration proceedings which are now the subject of this appeal. He has not provided the court with any proof that the entitlement to trips had an equivalent monetary value. The appellant on the other hand argues that the failure by the respondent to enforce his entitlement amounts to a waiver. The Arbitrator however held the view that since the respondent was entitled to two trips, he should be compensated. As shown above there is no proof to support that averment.

When parties appeared before the Arbitrator one of the terms of reference for this claim was: Whether or not the claimant is entitled to arrear trip allowance in the sum of $8 000-00 or any amount at all.

It is not disputed that respondent enjoyed the mentioned benefit.The contract document bears testimony to this.

The respondent was a “Centserve Director” with the appellant. Paragraph 3 of the Conditions of Service for a Centserve Director reads:

“3.	Centserve Perquisite

This is in the form of one return business flight to the UK on British Airways every two years and this is managed through our agent at Travel International.”

Paragraph 3 above simply states the appellant’s entitlement. There is no monetary equivalent attached to it. The said paragraph 3 does not explain what would happen should a person not wish to take the trip.

There was no evidence placed before the Learned Arbitrator showing that prior to the respondent’s claim, either the respondent or other centserve directors had opted to be paid money instead of taking the trip, and that if that had happened, what monetary value was placed on the trip.

As correctly submitted by Mr Moyo for the appellant, where there is a contract between parties and one party resiles, the innocent party can seek to enforce it or choose not to. A party cannot later want to enforce terms of a contract retrospectively where no such conditions obtain. It is not clear in the present case, whether or not the benefit was cumulative. Where however the innocent party chooses not to enforce the terms of contract he will be taken to have waived his rights. The respondent sought to assert his right after the relevant period had lapsed. There is no indication that at the material time he asserted his right and that it was denied. His conduct was therefore consistent with a person who had waived their rights to that privilege. (See Chidziva & Ors v Zimbabwe Iron & Steel Company Limited 1997 (2) ZLR 368 (S)).

After making the above considerations,I find that there is merit in the first ground of appeal. The respondent’s failure to proceed on trips as he was entitled to, amounts to  waiver. This bars him from asserting those rights.After leaving employment, It is attempt to enforce what he was entitled to appears like alternative as an afterthought and on a later date. As noted above, there was no proof that the respondent did not get an opportunity to travel.The Court is grateful to authorities cited by both parties counsel in support of their respective arguments. There is therefore merit in the second ground of appeal. Equally and again  as noted earlier on, there was no proof of how the monetary compensation was arrived at and the basis of such compensation.This means that there is merit in the third ground of appeal.

It was in view of  the foregoing I found that there is merit in the appeal, and granted the appeal. The award by the Learned Arbitrator is set aside in its entirety and in its place it is ordered that:

“The claimant’s claim for arrear travel allowance be and is hereby dismissed”.

Gill Godlonton & Gerrans, appellant’s legal practitioners

Murambasvina, Tizirai-Chapwanya, respondent’s legal practitioners