Tendai Tamanikwa & 3 Ors v Zimbabwe Manpower Development Fund

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/247/2014
HARARE, 18 MARCH 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/247/2014

HARARE, 18 MARCH 2014 &				  CASE NO LC/H/360/2010

25 APRIL 2014

In the matter between:

TENDAI TAMANIKWA						1st APPLICANT

And

FRANK TINARWO							2nd APPLICANT

And

EMMERSON PAMIRE						3rd APPLICANT

And

TENDAI MOMBESHORA						4th APPLICANT

Versus

ZIMBABWE MANPOWER DEVELOPMENT FUND		RESPONDENT

Before The Honourable B S Chidziva    :   Judge

For the Applicants	G Machingambi    (Legal Practitioner)

For the Respondent         C Mucheche        (Legal Practitioner)

CHIDZIVA J:

The applicants appeared in this court praying that this court should grant the order in the Draft Order which states as follows:

“It is ordered that

The respondent shall pay to the first, second, third and fourth applicants by way of salaries and benefits with effect from 9 April and 24 May 2012 respectively, broken down as follows:

TendayiTamanikwa, the sum of US$77 504-93

Frank Tinarwo the sum of US$77 984-93

EmmersonPamire, the sum of US$76 344-93

TendaiMombeshora, the sum of US$69 223-04

(2)	The respondent shall pay the costs of this application.”

The applicants in their Heads of Argument told the court that in terms of the Supreme Court judgment the disciplinary proceedings that had been effected against the applicants were nullandvoidabinitio by operation of law. The applicants submitted that they were entitled to reinstatement without loss of salary and benefits from the dates of dismissal to dates of reinstatement.

The respondents however raised a point in limine stating that the application is unprocedural and not provided for in terms of the Labour Act and the Labour Court Rules. The respondent has submitted that:

“1.2	The respondent appealed against the ruling by Mr J T Mawire on the preliminary point before Mr A J Manase. Mr A J Manase made a ruling that the Supreme Court ruling does not apply with retrospective effect and the effect therefore is that the disciplinary proceedings have to continue.

1.3	If the applicants are aggrieved by an alleged non-compliance of the respondent with a decision in their favour, they should follow and exhaust domestic remedies of referring the dispute to a labour officer under section 93 of the Labour Act rather than jumping the gun and improperly rushing to this Honourable Court as they have done.

1.4	The respondent re-instituted fresh disciplinary proceedings against the applicants in terms of the National Code and the matter is still sub judice. Therefore this Honourable Court can not quantify any arrear salaries and benefits.

1.5	The Supreme Court judgment does not carry retrospective effect. If the applicants think otherwise they should approach the Supreme Court to interpret its own judgment, and not the Labour Court nor Mr JT Mawire.

1.6	Out of the abundance of caution I will proceed to deal with the merits of the matter should the court not be inclined to dispose of the matter on the points in limineraised above.

It is respectfully submitted that the respondent has no legal  obligation

to pay any back pay in terms of the Supreme Court order. The Supreme Court only ordered reinstatement.

On these grounds the respondent then prayed for the dismissal of the application for back-pay for lack of merit.

The applicants on the other hand argued that the Supreme Court order had a retrospective effect and the applicants were to be paid accordingly.

It is common cause that the applicants were dismissed in terms of section 1 of the Zimbabwe Manpower Development Fund Regulations SI 258/96.

What is to be decided is whether the court order has a retrospective effect to the extent that the applicants should be paid back-pay from the date of dismissal to the date of judgment or not.

The court order reads as follows:

“It is ordered as follows:

The dismissal of the appellants by the respondent from employment be and is hereby set aside.

The respondent be and is hereby ordered to reinstate the appellants to their former positions without loss of salary and other benefits.

The respondent shall pay the appellants costs of appeal..”

The order has not specified the date from which the benefits are to be calculated from. The case of Standard Chartered Bank v Matsika 1996 (1) ZLR 123 defined reinstatement as follows (Page 391):

“The terms‘reinstatement’ is not a terms of artand must be accorded its ordinary sense. In William Dixon Ltd v Patterson (1943) SJ 78 at p 85 LORD JUSTICE CLERK, LORD COPPER said:

‘the natural and primary meaning of reinstate as applied to a man who has been dismissed (ex hypothesis without justification)  is to replace him in the position from which he was dismissed, and so to restore the status quo with the dismissal.”

In the Matsika case supra it was further stated that:

“The effect for such an order was considered by GUBBAY JA (“as he then was”) in Commercial Careers College 1980 (Pvt) Ltd v Jarvis1989 (1) ZLR 344 (S) at 350 – 1. From an order of reinstatement the following consequences are said to flow:

The employee is entitled to be replaced in his post;

There is no obligation on the employer to provide him with work;

The employer must continue to remunerate him upon the tender of his services; and

The employer is to restore him to the pay roll with effect from the stipulated date.”

Given the explanation in Matsika’s case the respondent was only ordered to:

To replace the applicants on their posts;

The respondent was to continue remunerating them when they provided their services

The respondent was to restore them on the pay roll.

It is this date of restoration that is in dispute. However in the case of Madyara v Globe and Phoenix SC-63-02 at page 7 it was stated that:

“Before learning the issue of backpay and benefits, I would like to clarify this court’s decision in Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 (S) (Ambali’s second appeal) criticised by counsel or the appellant in his heads of argument. Ambali was not awarded back pay and benefits for the period during which he was on suspension for the simple reason that the order of reinstatement issued in his favour did not have retrospective effect. It simply stated that Ambaliwas to be reinstated. It did not say that he was to be reinstated with effect from the date of suspension or with back pay and all benefits.”

In the light of the definition of the word “reinstate” given in these decided cases I am inclined to accept the respondent’s argument that:

“It means only that they should be reinstated and from the date of reinstatement continue to receive the same pay and benefits as they received before the purported dismissal.”

In the circumstances therefore this court orders that the application for quantification be and is hereby dismissed.

G Machingambi Legal Practitioner, applicants’ legal practitioners

Matsikidze&Mucheche, respondent’s legal practitioners