Tichaona Daniel v Hightide Security & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/143/2020
HARARE, 29 APRIL, 2020
CASE NO. LC/H/REV/15/19
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/143/2020

HARARE, 29 APRIL, 2020			 CASE NO. LC/H/REV/15/19

AND 3 JULY, 2020

In the matter between:

TICHAONA DANIEL						APPLICANT

Versus

HIGHTIDE SECURITY						1ST RESPONDENT

ALLEN NANI N.O							2ND RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:					C. Mavhondo

For Respondent:					T. Danana

KACHAMBWA J:

This is an application for review brought by a losing employee in a matter that was before a Labour officer in terms of section 93 (5a) and (5b) of the Labour Act Chapter 28:01 (the Act). The application is in terms of section 92EE (C) of the Act as amended by Act No.5 of 2015. Section 92EE (C) says that one of the grounds for review before the Labour Court is

“gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

The grounds for review cited by the applicant are that;

“1.	The 2nd Respondent’s decision that the termination on notice is lawful, was so outrageous in its defiance of logic given that the termination on notice was done contrary to Section 12(4)(a) of the Labour Act (Chapter 28:01).

2.	The 2nd Respondent’s decision that the Applicant’s claim was res judicata was irrational”.

The brief facts of the case are that the applicant was employed by the 1st respondent on a permanent basis. On the 1st of June 2016 the 1st Respondent issued a letter of termination of employment in terms of section 12(4) of the Act. The letter mentioned that termination was in terms of common law as read with section 12(4) of the Act. Section 12(4) prescribes the notice periods for termination of a contract of employment. Following this termination the applicant lodged a complaint of unfair dismissal. This was unsuccessful as this was not a case of dismissal which is termination due to misconduct but was termination in terms of common law, that is, no fault termination.

After unfair dismissal failed the applicant lodged a complaint of unlawful termination, claiming that the 1st Respondent did not follow the law as laid down in Section 12(4a) of the Act. Section 12 (4a) maintains the right to terminate on notice but puts condition to it. Applicant claimed terminal benefits.

The applicant meanwhile was paid compensation for the terminated contract. He accepted the payment. However he insists that termination was unlawful, and he claims that he be reinstated or that damages be paid in lieu of reinstatement.

The fact of the termination of the contract having been appealed to the Labour Court and having been dismissed as such gave rise to the defence of res judicata.

The Labour Officer (2nd Respondent) dismissed the claim and also held that the matter had already been concluded, it is res judicata.

The applicant disagrees and is of the view that this is a matter that falls squarely under section 92 EE (c) of the Act.

On the issue of the termination being contrary to section 12(4a) of the Act the counsel for 2nd Respondent conceded that the letter was clear that it was not in terms of section 12 (4a) but in terms of section 12 (c). However he argued that as the applicant was paid his terminal benefits and accepted them the difference is the same, that, infact he had conceded to the termination. He also argued that the provisions for termination were of the same effect. It was nevertheless conceded that the finding by the Labour officer that termination was in terms of section 12(4a) was not in line with the termination as per the letter and as per the 2nd Respondent’s argument.

Both parties agreed that termination in terms of common law was modified by section 12(4a). One may terminate by notice but he/she must follow the procedure set out in section 12 (4a) as read with section 12(c). Basically the common law right to terminate is conditional to payment of at least a minimum compensation. In the present case compensation was bot paid concomitant with the termination but it was later paid and received. Thus technically the applicant was compensated. Whether that compensation was adequate only him can argue against. However that argument was not made. But once payment was made the applicant’s claim of unlawful termination is truly academic or technical. There is no argument that the 2nd respondent is entitled to terminate the contract on notice. All it has to do is to follow the process for compensation. It has done so though belatedly. That should remove the reason for the complaint unless it is now argued that the compensation is not adequate in terms of the law. That would be a different issue to unlawful termination. Put differently what is the purpose of ordering any reinstatement when compensation having been paid the law was fulfilled? If the compensation is inadequate then the unsatisfied party should seek redress accordingly. The claim for reinstatement is merely being argumentative. The designated agent was correct that section 12(4a) had been met technically.

In the result the first ground for review must fail. It is an argument on a mere  technicality. It does not take the matter anywhere. The employer wanted to terminate the contract through common law. To do so he is required to pay the employee in terms of the new amendment. Although the letter of termination does not refer to the new amendment the employee was nevertheless paid accordingly. We did not hear the employee complain that the payment was not adequate. His complaint is simply that the letter of termination did not mention the new provision! Ordering a reinstatement for that reason is an exercise in futility, a step that will not serve any useful purpose to anyone. Accordingly this ground for review must be dismissed and is so dismissed.

Is the matter res judicata? The applicant referred to cases on res judicata.

1. Rupande v CM Grobellar and others HC 10633/18

2. Gwasira v Sibanda HC 11495/16

On the other hand the respondent referred to a South African case of Royal Sekaba Holdings Pvt Ltd v Grant William Cooks & Another SA 366/2013.

The requirements for res judicata are not in dispute. These are that;

1.	The matter must be between the same parties or their representatives.

2.	The cause of action must be the same.

3.	The relief sought must be the same.

The issue is truly speaking another argument on a technicality that arises because of the differentiation between dismissal and termination on notice at common law. Dismissal is fault based while termination at common law is not fault based. For that reason when the applicant raised an issue of unfair dismissal that complaint could not be sustained because this was not a case of dismissal. His remedy was not in unfair dismissal. Rather it was unlawful termination or perhaps more specifically unprocedural termination. That is why his case was dismissed. He chose the wrong title so to speak. The dismissal was otherwise a technicality and not on the point that what had happened to him was lawful. In other words the facts are the same but the complaint is not unfair dismissal. While at the end of the day one is still talking of loss of employment the considerations are different. To that extent the matter was not decided. The unlawful termination was not decided. It had to be considered on its own. The matter was therefore not res judicata. The applicant succeeds on this claim but the success does not take him anywhere as the real issue has been resolved already. Infact this point should otherwise have been a point in limine.

The applicant was otherwise just being argumentative as he did not stand to gain anything since he has been paid his compensation. His argument does not take the case anywhere. In the result the court decides as follows;

1.	the designated agent’s decision that the termination was lawful be and is hereby confirmed.

2.	the claim for reinstatement, failing payment of damages, be and is hereby dismissed.

3.	the designated agent’s finding that the matter of unlawful termination was res judicata be and is hereby set aside.

4.	the matter of unlawful termination be and is hereby held not to be res judicata.

5.	each party pays its costs.

Messrs Mhishi Nkomo Legal Practice -	Applicant’s Legal Practitioners

Matsikidze & Mucheche -	1st Respondent’s Legal Practitioners