Riverside School v Tatenda Tandi

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/159/24
HELD AT HARARE 26 FEBRUARY 2024
CASE NO LC/H/9/24
AND 9 APRIL 2024
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 26TH FEBRUARY 2024
AND 9 APRIL 2024

In the matter between

RIVERSIDE SCHOOL

And

TATENDA TANDI

JUDGMENT NO LC/H/159/24

CASE NO LC/H/9/24

APPELLANT

RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE

FOR THE APPELLANT : MRS F. CHINWAWADZIMBA
FOR THE RESPONDENT: MS N. JAKARA

MAKAMURE J:

On 12 November 2022 the appellant hired the respondent as a bursar. They signed a contract of employment. It was a fixed term contract which was to expire on 31December 2024. On 7 August 2023 the appellant terminated the contract of employment in terms of clause 9.2 of the contract through a letter written thus:

‘RE: NOTICE OF TERMINATION OF EMPLOYMENT

The above reference refers.

We wish to inform you that in terms of clause 9.2 of your employment contract with us we hereby give you 4 months ‘ notice of termination of your employment contract.

The termination is in accordance with clause 9.2 of your employment contract .We shall be proceeding to pay you salary in lieu of your four months’ notice. Your employment will end on the 11th of December 2023.
 You will not be required to attend work during the four months referred to above and are requested to clear with the school any property and other obligations that arose during the course of your service.

Should you have any questions about other details about your termination, please contact the Principal.

Riverside School wishes you the best in your future employment and endeavours.

...(Signed)'

The appellant did not pay the respondent either the monthly salaries or the four months' notice pay. As a result, the respondent approached a designated agent (DA) with the NEC Welfare and Educational Institutions with a claim for “Alleged unlawful dismissal and non-payment of terminal.” She did not seek reinstatement. The parties appeared before the DA. After considering evidence and submissions, the DA found in favour of the respondent. The appellant was aggrieved by that outcome and noted this appeal.

The appellant raises four grounds of appeal. They are as follows:

‘1. The Designated Agent misdirected himself and erred at law in not making a finding in respect of a preliminary point that had been placed before it for determination, namely the Designated Agent did not have jurisdiction to deal with the matter placed before him.

2. The Designated Agent erred at law in assuming jurisdiction, in circumstances where he had no jurisdiction to deal with the matter.

3. The Designated Agent erred and misdirected himself in making a finding that the respondent had been unlawfully dismissed, notwithstanding that the respondent had been dismissed on notice by virtue of mutual agreement between the parties in terms of section 8 of the Labour Amendment Act, 2023.

4. In dealing with the aspect of terminal benefits and its quantum therefore, the Designated Agent grossly misdirected himself and erred by failing to give the Appellant the option to reinstatement.’

Before the DA it was argued on behalf of the respondent (then claimant), that she was entitled to cash in lieu of four months’ notice period, notice pay, cash in lieu leave days and payment for the unexpired portion of the contract. It was submitted that in view of the amendment to the Labour Act Chapter 28:01 (the Act) by the Labour Amendment Act Number 11of 2023 (the Amendment), the termination on notice was unlawful. The Amendment which amended s12(4a) of the Act, it was submitted, outlawed termination on notice even if the parties had agreed to it.

On the question of jurisdiction, it was submitted on behalf of the respondent that the DA had jurisdiction in terms of s63(3a) of the Act to determine the matter.

It was submitted on behalf of the appellant (then respondent) that the claimant was seeking the DA to declare that the termination clause in the contract between her and the appellant was null and void. The appellant insisted that despite the Amendment the terms of the contract binding the two parties was still valid. It was submitted on behalf of the appellant that a claim for notice pay at the end of the contract was baseless. It was further submitted on behalf of the appellant that the termination of contract was done in accordance with the law and the respondent ‘s claim should be dismissed.

In analyzing what was placed before her, the DA first dealt with the issue of whether or not she had jurisdiction to deal with the matter. This issue was raised on behalf of the respondent (now appellant). The DA referred to s63(3a) of the Act. S63 (3a) empowers a designated agent to redress or attempt to redress disputes. In *casu*, the dispute before her being a dispute of right the DA’s position was that she had the jurisdiction to determine the matter and so she proceeded to deal with it.

The issues for her to determine were: (i) Whether the Claimant was unlawfully dismissed; (ii) The amount of terminal benefits; and (iii) The appropriate remedy.

The DA considered the question of termination of contracts on notice. She gave a historical narration of what the Legislature was trying to do in order to address its impact when an employee’s contract is terminated. In this regard reference was made to the case of **Don Nyamande & Another v Zuva Petroleum (Pvt) Ltd SC 43/15 (Civil Appeal No SC 281/14)** and the Labour Amendment Act 5/2015 which amended the Act prior to the present amendment, and also the Amendment which affects the present proceedings. The DA referred to the s12 (4a) of the Act as amended. In her interpretation, the contract between the parties herein was done in terms of a repealed section of the Act. Since the termination was done after the amendment was in force, the termination ought to have been in terms of the Act in its amended form. As the termination was done in terms of the contract between the parties but contrary to provisions of the Act as amended, the DA’s finding was that the termination, having not met the requirements set out in the amended Act, was unlawful. The DA thereafter found that: the Respondent was entitled to payment of the unexpired period of the contract; since this was a fixed term contract, no notice pay was due as the contract expired by effluxion of time; the respondent was entitled to cash in lieu of ten (10) outstanding leave days for 2022 and seventeen point five (17.5) leave days for the period January to July 2023.

Before this Court it was submitted on behalf of the appellant, that the DA failed to deal with the preliminary issue concerning the alleged absence of jurisdiction on her part and that she therefore did not have jurisdiction to deal with the matter. It was submitted further with respect to the termination of the contract that the contract was terminated by mutual agreement since the termination was in terms of the provisions of the contract binding the two parties. It was submitted that the DA erred by not considering the option of reinstatement and therefore erroneously made an award for damages. It was submitted that for these reasons, the appeal ought to be granted setting aside the DA’s decision. On the contrary it was argued on behalf of the respondent that, with respect to the preliminary issue placed before the DA on the question of her jurisdiction, S63(3a) of the Act empowered the DA to determine the dispute. On the merits of the matter it was submitted that the Act as amended by s8 of the Labour Amendment Act, 11 of 2023 provided that an employee’s contract may be terminated by either his/her resignation or retirement or mutual agreement or for breach of an express or implied term of contract between the parties. Since none of the provisions of the Act were met, the termination of the respondent’s contract with the appellant was unlawful. On the question of the option of reinstatement, it was argued that due to the manner that the respondent was dismissed from employment the trust between the two parties was broken. It was argued that reinstatement was not the only inevitable remedy for wrongful dismissal. It was submitted that the respondent’s contract of employment was unlawfully terminated and that the DA had jurisdiction to determine the matter and further that the determination be upheld.

The Court is grateful to both Counsel for the authorities cited.

The contract of employment provided for termination of employment as follows:

*9.1 The employer may terminate this Contract of Employment in terms of the Labour Relations (National Employment Code) Regulations Statutory Instrument (SI)15 of 2006, (asamended) or his/her relevant regulations or legal instrument. And also SI 102/2014 (SI of 2015)ECOC of Welfare and Educational Institutions.

9.2 The Employee or Employer may terminate this Contract of Employment by giving one full school term’s (4months) notice of intention to terminate this contract.

9.3 Any termination of this Agreement by Employer shall be without prejudice to any claim(s) which Employer may have against the Employee, for damages or any other legal remedy by reason of any breach of this Agreement by the Employee or for any other reason.

9.4 The employer may terminate this contract if the employee has committed or breached any of the other policies and regulations which warrants instant dismissal. In this case the termination is instant especially if the breach affects the welfare of a student or students.

9.5 The employer may terminate this contract in the grounds of employee Incompetence.(sic)’

The Act (as amended) provides for termination of employment as follows:

'(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer—

(a) by mutual agreement in writing;

(b) for the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned No employer shall terminate a contract of employment on notice unless-
 (4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without limitation of time, the provisions of section 12C shall apply with regard to compensation for loss of employment. (My underlining).

The Labour Amendment Act 11 of 2023 came into effect on 14th July 2023. The respondent’s contract with the appellant was terminated on 7th August 2023. As the above provisions show, the Act actually stipulates the various considerations which have to be made before an employee’s contract of employment is terminated. The employee either resigns or retires OR there is mutual agreement between the employer and the employee to terminate; or the employee has committed a breach of the express or implied terms of the contract which would require the employer to inquire into before termination is resorted to. Herein the respondent’s contract was terminated in terms of clause 9.2 of the agreement. Clause 9.2 does not fall within the conditions set out by the Act. There was no mutual agreement between the parties. The respondent did not resign and neither did she retire. This means that the termination of the respondent’s employment by the appellant was unlawful.

S63 (3a) of the Act provides that:

‘(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.’


I will now consider the grounds of appeal. The first ground took issue that a preliminary issue raised before the DA regarding her lack of jurisdiction to deal with the matter was not resolved. On this issue, the DA referred to s63(3a) of the Act. It gives her the jurisdiction to consider the matter. The DA therefore properly considered the preliminary issue and found that she had jurisdiction to deal with the matter. Indeed, she had. The Act says so. Unfortunately, there was no suggestion or indication on behalf of the appellant as to which authority had jurisdiction to deal with the respondent’s claim. So, the preliminary issue was duly considered. This, answers ground 2 as well. So, the first two grounds of appeal have no merit. On the third ground this Court found that the letter of termination of employment was outside the terms of the Act (as amended). Such termination was therefore unlawful. On the fourth ground of appeal, it is the appellant which dismissed the respondent from employment. It is surprising that it is now suggesting that an order for her reinstatement ought to have been made. The employer is ‘blowing hot and cold’ and that cannot be allowed. In any event the respondent did not seek the remedy of reinstatement. The DA could not award a relief which was not sought. This means that there is no merit in the fourth ground of appeal.

It is trite that a fixed term contract is terminated upon the effluxion of time. An employee bound by terms of a contract of fixed duration is entitled to payment of salaries for the duration of that contract. Where there is premature termination, the employee is entitled to payment for the remaining portion of the contract. **Kundai Magodora and Others v Care International SC 24/14.**

**In Simbi (Steelmakers) Limited v M. Shamu & Others SC 71/2015** the Supreme Court stated that:

'First and foremost, a fixed term contract expires automatically upon the effluxion of its stipulated period.' The respondent was therefore entitled to be compensated for the duration of her contract with the appellant which contract was unlawfully terminated. Had the contract properly been allowed to run its full course, it would have expired automatically with no need for notice to be given. The employee would also have been entitled to cash in lieu of the outstanding leave days.

In *casu*, all the grounds of appeal have been found to have no merit. The appeal therefore has no merit. It must be dismissed. This means that the decision of the DA is beyond reproach. It is upheld.

In view of the foregoing it is ordered that:

1. The appeal be and is herby dismissed with costs.

2. The determination of the Designated Agent dated 30th November 2023 be and is hereby upheld.

**CHIMWAMUROMBE LEGAL PRACTICE, APPELLANT’S LEGAL PRACTITIONERS.**

**MUNDIA & MUDHARA, RESPONDENT’S LEGAL PRACTITIONERS.**


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