Temperly Farm (Pvt) Ltd v B Chakwana and 116 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/35/2016
HARARE, 21 OCTOBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                   JUDGMENT NO. LC/H/35/2016

HARARE, 21 OCTOBER 2015			           	      CASE NO. LC/H/1065/15

AND 22 JANUARY, 2016

In the matter between:-

TEMPERLY FARM (PVT) LTD			Appellant

And

B CHAKWANA AND 116 OTHERS		Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Ms R. Bwanali (Legal Practitioner)

For Respondent		Mr T. Maramwidze (Trade Unionist)

MAKAMURE, J:

This is an appeal against an arbitral award issued at Chinhoyi on 6 October 2014.  The Learned Arbitrator ordered Temperly Farm to reinstate all the respondents with no loss of salary and benefits with an alternative order for the payment of damages should reinstatement be no longer possible.  The appellant was aggrieved by the award and appealed to this court on the following grounds:

The Honourable Arbitrator erred at law in finding that Kelvin was properly cited in the matter.

The Honourable Arbitrator erred at law in finding that the respondents were unlawfully dismissed.

The Honourable Arbitrator erred at law in finding that the Appellant unilaterally varied the respondents’ contracts of employments (sic) when the issue was not part of the terms of reference.

The Arbitrator erred at law in finding that the appellant had constructively dismissed the respondents.

The Honourable Arbitrator erred at law in determining issues that are outside the agreed term of reference.

The papers show that at some point the respondents’ employer was one Kelvin Nel.  However the Learned Arbitrator without explaining cited the employer as Temperly Farm.

It was pointed out that and indeed it is common cause that Temperly Farm is not a legal persona.  As such there was no respondent before the Learned Arbitrator.  For that reason alone the proceedings before the Arbitrator were a nullity. [See Gariya Safaris (Pvt) Ltd v Van Wyk] 1996 (2) ZLR 240].

That is not all, it is not disputed that Temperly Farm (Pvt) Ltd ceased operations in 2002. Thus even if it been properly cited, there could not be a cause of an action in 2012 against an entity whose operations ceased in 2002.

It is not disputed that one Kelvin Nel’s farm was acquired though the Land Reform Programme.  He relocated to a new farm and had to start operations afresh.  There were no proper structures for accommodation.  He also had no equipment.  However when he relocated he moved with 42 out of 117 workers.  75 workers remained at the acquired farm.  He sent transport for them to be relocated to the new farm but they refused.  Out of the 42 who had relocated, they all eventually deserted the new farm citing poor accommodation and lack of equipment.  After deserting their employer, they lodged a complaint for unfair dismissal.  This led to arbitration resulting in the present proceedings.

The law is very clear on desertion. In Kenias Kandemiiri v Director DDF H-C-H 6/98 it was held that;

“Generally speaking an employee who deserts his employer is not entitled to any equitable relief.

...

A deserting employee cannot sue for wrongful dismissal because he has not been dismissed.  He has deserted” (see also Lee Group of Companies v Ann Clare Elder SC 6/05).

It is clear in the present case that all the employees deserted their employer, they therefore could not sue for unlawful dismissal. This is quite apart from the fact that the matter was not properly before the arbitrator.  The present appellant had to prosecute the appeal in order to clarify its position.

In view of the foregoing I find that there is merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby granted with costs.

Cohlan Welsh & Guest, appellant’s legal practitioners