V.S. Nhema (Labour Officer) v Bindura Nickel Corporation Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LCH162/23
HARARE 11 MAY, 2023 14 JUNE 2023
CASE NO LCH443/23
V.S. NHEMA (LABOUR OFFICER)
APPLICANT
BINDURA NICKEL CORPORATION LTD
1
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 11 MAY, 2023 14 JUNE 2023

JUDGMENT NO LCH162/23
CASE NO LCH443/23

V.S. NHEMA (LABOUR OFFICER) APPLICANT

BINDURA NICKEL CORPORATION LTD 1ST RESPONDENT

PHILLIP CHIWUNDURA 2ND RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant Mr V.S. Nhema, Officer

For 1st Respondent Mr W. Musengwa, Attorney

For 2nd Respondent Mr D. Kufaruwenga, Attorney

MUSARIRI, J:

On the 25th April 2022 at Bindura, applicant qua Labour Officer issued a ruling. He ordered 1st respondent (employer) to reinstated 2nd respondent (employee) or pay damages in lieu of reinstatement. Apparently, the employer did not comply with the ruling. Then applicant applied to this Court for the confirmation of his ruling in terms of section 93(5a) of the Labour Act [Chapter 28:01], hereafter called the Act. The employer opposed the application whilst the employee naturally supported the application.

Applicant’s ruling captures the dispute between the parties as follows;
 “1. From submissions filed by both parties of record, it is not in dispute that the claimant was employed by the respondent as a full-time employee from the 26th January, 2015 up until the 5th of January 2022 when a letter captioned (Notice of termination of contract of employment) was handed to him by respondent.

2. The first point of departure between the disputants is that the claimant alleges that his contract of employment was unlawfully terminated by the respondent when the respondent sought to terminate his services on notice via the 5th January 2022 letter. In so far as the claimant was concerned, the respondent had violated provisions of section 12(4a) of the Labour Act [Chapter 28:01]. This assertion by the claimant is denied by the respondent who instead argued that he denies unlawfully terminating the services of the claimant because according to him, the 5th January 2022 letter that he authored was communication which showed that as parties to the employment contract, they had mutually agreed to terminate the employment relationship on notice. As such the respondent argued that he terminated the services of the claimant legally as the termination was in terms of section 12(4a) (b) of the Labour Act [Chapter 28:01]”

After an extensive analysis of the arguments and documents presented, applicant concluded thus;

“7. In view of the above findings and analysis of the circumstances of the dispute in casu, as has been laid bare herein, it is my considered view that the claimant’s claim of unfair labour practice by the employer (unlawful termination of contract of employment) must prevail.”

It is apposite at this stage to quote the relevant statutory provisions referenced in applicant’s ruling. Section 12(4a) of the Act reads;

“No employer shall terminate a contract of employment on notice unless-

(a) the termination is in terms of an employment code, or in the absence of an employment code, in terms of the model code made under section 101(a); or

(b) the employer and employee mutually agree in writing to the termination of the contract; or

(c) ……..” (underlined for emphasis)

Applying this law to the dispute in casu, it is clear that the real issue between the parties was whether the employment contract was terminated by mutual written agreement. The letter of termination dated 5th January 2022 was accompanied by a breakdown of the terminal benefits together with a Declaration. The employee signed to acknowledge receipt of the letter and also signed the Declaration on the same date that is on the 6th January, 2022. The Declaration reads thus;

“I, Phillip Chiwundura hereby declare as follows;

1. I acknowledge receipt of the termination of my employment contract from Trojan Nickel Mine Limited (the company) which was effective on 26th January, 2015.

2. I accept the termination package offered by the Company as in full and final settlement of all my terminal benefits.

3. I hereby warrant that I have no other historical, present or future claims again the Company, its affiliates, associates, employees, directors and agents, howsoever arising, being in delict, contract or any other cause, arising from the employment relationship.

4. I make this declaration freely and voluntarily and without undue influence.”

Applicant dismissed the Declaration in the following terms;

“As a consequence of this finding that there was no engagement and resultantly no agreement to mutually end the employment relationship between the disputants, I am of the view that the manner in which the employment relationship was ended cannot be taken to be as one that was in line with the dictates of section 12(4a) (b) of the Labour Act [Chapter 28:01]. Riding on the strength of this finding, the claimant’s argument in relation to this specific subject matter must prevail.”

I respectfully disagree. Section 12(4a) (b) of the Act does not talk of an engagement between the parties. It only requires written evidence of the mutual agreement to terminate employment. The documents presented to applicant infact show that there was agreement to terminate employment evidenced by the signatures of the employer and employee. I am persuaded by the employer’s attorney that the documents ought to be read together. They are effectively one document. They logically fall one after the other leading to their signature by the employee on the same date. Essentially the employee agreed to termination the quid pro quo being payment of the termination package by the employer. I am fortified in this view by the case of

Ruturi v Heritage 1994(2) ZLR 374 where GUBBAY CJ (as he then was) stated that (p379 F–G),


“In the context, the use of the word (mutually) is significant. It underlines the requirement that the assent of the parties to the termination of employment must appeal ex facie the document. Put otherwise, that without the need to go beyond or outside the document the existence of an agreement is reflected. The document must stand on its own feet. It must constitute the sole permissible evidence of termination.” (My underlining is for emphasis)

Applying the Ruturi case to the present matter, there was no need for applicant to go beyond the relevant document(s) and seek evidence of the engagement of the parties. The applicant should have concluded that the employment contract was terminated by the mutual agreement of the parties. The wrong conclusion by applicant amounts to a gross misdirection on the facts and the law. As a result, applicant’s ruling cannot be confirmed.

Wherefore it is ordered that.

1. The application for confirmation of ruling be and is hereby dismissed;

2. Applicant’s ruling dated the 25th April 2022 is set aside and substituted as follows;

“The Claimant’s claim of unlawful termination of employment is hereby dismissed”; and

3. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E
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