Unilever Zimbabwe (Pvt) Ltd v Simbarashe Matsheza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/360/13
HELD AT HARARE 9TH JULY 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/360/13

HELD AT HARARE 9TH JULY 2013		    CASE NO LC/H/08/13

In the matter between:-

UNILIVER ZIMBABWE (PVT) LTD			Appellant

And

SIMBARASHE MATSHEZA				Respondent

Before The Honourable P Muzofa, President

For Applicant		Advocate Mahere

For Respondent		Mr J.R. Tsivama (Legal Practitioner)

MUZOFA, P:

This is an appeal against the Arbitrator’s ruling which awarded the Respondent a salary increase in essence varying the retrenchment package agreed to by the parties.

The background to this case is as follows.  The Respondent was employed by the Appellant until the 31st of March 2010 when he was retrenched.  The Appellant and the Respondent agreed on the retrenchment package which was duly signed on the 15th of February 2010.  While the parties were negotiating the retrenchment package, the Appellant was reviewing its employee’s salaries.  Respondent was aware of this.  The salary review resulted in a 38% salary increment which was awarded to all employees except for the Respondent.  The Respondent was awarded an increment on his retention allowance.  Unsatisfied by Appellant’s conduct the Respondent took measures that culminated in the arbitration proceedings being appealed against.

The reference to arbitration Form LR4 sets out the issue that the arbitrator was to determine as,

“whether the employer was supposed to use the salary effective on 1st March 2010 when calculating the employee’s retrenchment package”

The Arbitrator’s finding was that the Appellant was supposed to use the 1st of March 2010 salary.  In essence the Appellant was supposed to have had awarded the Respondent the salary increment since he was still employed by the Appellant.  The Appeal against this decision based on the following grounds:-

That the Arbitrator grossly erred in making a finding that Respondent was entitled to a 35% salary increment on his terminal benefits notwithstanding the existence of a mutual termination agreement signed by both parties.

The Arbitrator erred to order that Appellant pays Respondent a sum of US$58 309.40 as outstanding retrenchment package plus interest at the prescribed rate notwithstanding the existence of a mutual termination agreement signed by both parties.

The Respondent opposed the appeal and raised a point in limine, that the grounds of appeal do not raise a question of law.  On the merits it was submitted that Appellant was enjoined to award Respondent a salary increment as per its promise and that he was still its employee until the 31st March 2010.  Appellant should not have discriminated against the Respondent.

The first issue to deal with is whether this appeal raises any question of law because, in terms of section 98 (10) an appeal against an Arbitrator’s finding lies to this Court only on a question of law.  In my view the Arbitrator’s finding was a finding of fact.  It is trite law that a finding of fact can amount to a question of law where it is wholly unreasonable.  I do not think the Arbitrator’s ruling was outrageous, the Respondent was still employed by Appellant, the Appellant itself had varied the agreed retrenchment package only in so far as the figures to be paid but in principle what was to be paid out was set out and lastly it is alleged that  that the Appellant had promised to effect any changes that resulted from the salary review.

On this point alone this appeal would fail since the appeal raises a point of fact.  However in the event that I am wrong in this finding I believe on merit the appeal cannot succeed.

I will now deal with the merits of this case.  The main thrust of Appellant’s argument is that the Respondent had signed the retrenchment package which had figures therefore it was not open to interpretation.  This then meant Respondent was bound by that agreement.  It is important for me to highlight some salient features of this case.  The retrenchment package was signed on the 15th of February 2010 however it did not state the effective date, it was worded thus

“Termination

All the above calculations are based on termination date of …”

and there is no date.  On the same date the Respondent signed an indemnity absolving Appellant from liability arising from the employment relationship.  The first statement on the indemnity on page 37 of the record is written as follows,

“Having accepted the retrenchment package offered by Unilever Zimbabwe I am terminating my employment with the company with effect from 31 March 2010.”

The Respondent was therefore an employee of the Appellant until the 31st March 2010.

The Appellant relied on the case of Chidziva and Other v Zimbabwe Steel Company Ltd 1997 (2) ZLR 368 and submitted that when the Respondent agreed that his retrenchment package would be in the sum of US$108 185.00, he was indicating that an employer/employee relationship between the parties had ceased to exist from that time.  This is an incorrect interpretation of the agreement.  As stated it was signed on the 15th of February 2010.  It did not have an effective date.  Reading the retrenchment package in conjunction with the indemnity letter shows that the effective date was to be 31st March 2010.  So the correct interpretation should be the employer/employee relationship between the parties was to cease on the 31st March 2010.  Although the Appellant did not specifically raise waiver in its submissions it argued that the Respondent had waived his rights, the court can address the issue of waiver even if it was not specifically raised as a ground of appeal see Chidziva case supra.

The Chidziva case is distinguishable from the case before this Court.  In the Chidziva case the Appellant had singed termination of employment and clearance forms confirming their acceptance of the termination of their employment.  They then received their termination package except for two employees.  In addition there was a delay in enforcing their rights.  In casu as soon as the other employees were awarded the said 38% increment the Respondent registered his complaint by e-mail on the 10th of March 2010.  At that time he had not ceased to be Appellant’s employee, he had signed the retrenchment package but had not received the said amount.  There’s no evidence when he received his money.  On page 39 of the record there’s a calculation of his package however it is not dated though it has a termination date of 31 March 2010.

I do not think Respondent waived his rights at all.  It is also common cause that Respondent was aware that there were salary reviews taking place.  Respondent alleged he sought to understand how Appellant was to deal with the review, he was advised any adjustments would be effected on his package.  Appellant denied making this verbal agreement.  Despite Appellant’s denial I find it difficult to reconcile Appellant’s decision after the salary review.  Firstly to show that Respondent was still an employee they awarded him an increment.  Interestingly it was not a salary increment it was a retention allowance increment.  I am constrained but to believe the Respondent’s submission that it was less cumbersome in terms of the total amount to award a retention allowance increment than a salary increment.  The total amount due to the Respondent would have increased phenomenally.   It boggs the mind for the retention allowance to be increased when Respondent was about to leave, what did Appellant intend to retain.  It should be noted that in the Chidziva case (supra) the Appellants sought a different remedy to have the retrenchment agreement set aside.  In this case the Respondent is still in agreement with the principle setting out the number of months to be paid and the specific lines.  However it is the salary scale that he challenges.  In the Chidziva case supra it was also held that for a waiver to be satisfied there should be an express abandonment.  I believe by the 31st of March 2010 Appellant was clear that the Respondent wanted or was still expecting his retrenchment package to be calculated using the new salary scale.  Taking the circumstance of the Respondent and Appellant’s conduct after the salary review I am totally convinced there was no waiver made expressly or impliedly.

It was also argued on behalf of the Appellant that the Respondent is not entitled to claim the 38% increment based of the fact that the retrenchment package was a mutual contract and therefore cannot then resile from what he expressly agreed to and referred the court to the case of Burger v Central SAR 1903 TS 571.  Indeed the caveat subscriptor is a sound principle forming the basis of our law.  It is however not applicable in this case.  I say so because if the parties particularly the Appellant wanted or intended the retrenchment package especially the final figure to be binding and not changed Appellant would not have even considered effecting the increment on the retention bonus.  The fact that Appellant did shows that parties were bound by the formula how they will calculate but not the figures in that agreement.  Indeed he had signed that the said amount was in “full and final settlement,” however there was a promise that the outcome of the review would be effected on his package.  The Appellant in a disguise to honour its word effected a review of his retention bonus instead of a salary increment.

It was also argued that at the time the agreement was made, it was agreed that as from the 1st of March 2010 the Respondent was engaged on a retention allowance and not an employment contract.  Clearly this is an untenable argument.  Appellant being the employer did not reduce this agreement into writing and naturally it was disputed by the Respondent.  There was no evidence what was paid in March 2010 to Respondent either a retention allowance or a salary.  I am still convinced that as of the 1st of March 2010 the Respondent was still an employee of Appellant on the same terms and conditions as other workers in his grade particularly in the absence of evidence pointing otherwise.  The assertion that the Respondent was on a retention allowance and not an employment contract flies in the face of the indemnity letter which says the Respondent will terminate his employment with the company with effect from 31 March 2010.

The Appellant also argued that a salary increment is not a right Chiremba and Others vReserve Bank of Zimbabwe 2007 (2) ZLR 370 (S) and Mateke and Others v Minister of Local Government & Housing & Another 2007 (2) ZLR 9.  If the law were to provide for discriminatory salary increment that would be an absurdity.  The Respondent is not suing that his salary be reviewed upwards.  What the Respondent wanted is to have the award resulting from the review to be effected on his salary since he was still an employee until the 31st of March 2010.  It was alleged that Respondent had been retrenched in February.  He had signed the agreement in February and his date of termination was to be 31 March 2010.  He was therefore retrenched in March 2010 that is why he was offered an increased retention allowance that was effected even on his retrenchment package.  I believe the Post and Telecommunications Corporation of Zimbabwe v Telecommunications Workers Union and Others 2002 (2) ZLR 722 (S) case is instructive in this case.  The retrenchees in that case claimed the salary increase that was awarded to others and back dated to a time they were in service.  I believe Respondent was still in service by March 2010  when the salary review was made and effected for other employees.  Appellant opted to effect an increment on the retention allowance.  I do not believe there was a separate contract for March 2010 placing Respondent on a retention allowance.  This appeal must fail.

Accordingly it is ordered as follows,

The appeal be and is hereby dismissed with costs.

Coglan Welsh & Guest, Appellant’s Legal Practitioners

Sawyer & Mkushi, Respondent’s Legal Practitioners