William Sibanda v Willowvale Mazda Motor Industries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/667/2013
HARARE, 19 NOVEMBER 2013 &
CASE NO LC/H/755/2012
6 DECEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/667/2013

HARARE, 19 NOVEMBER 2013 &		   CASE NO LC/H/755/2012

6 DECEMBER 2013

In the matter between:-

WILLIAM SIBANDA					APPLICANT

Versus

WILLOWVALE MAZDA MOTOR INDUSTRIES		RESPONDENT

Before The Honourable L Kudya	:	Judge

KUDYA J:

This is an application for interim relief by the Applicant (“employer”) against the Respondent (“employee”) pending the hearing and conclusion of an appeal concerning the above quoted parties.

Background of the case is that, the employee was dismissed from employment and has since lodged an appeal to the Labour Court against his dismissal. He however, is still in possession of a motor vehicle belonging to the employer. In the instant application, the employer wants the Court to direct the employee to surrender the motor vehicle pending the conclusion of the appeal lodged by the employee.

The employee has opposed the relief sought arguing that, his appeal is still pending, so until a definite position has been taken by the appellate court, only then can he be in a position to surrender the motor vehicle in question. On 2 November the interim relief application was also made in the High Court before MUSAKWA J who ruled that, the matter was not urgent but did not delve into the merits of the case. The matter then found its way before this Court but this time, the Court focused mainly on the merits of the application. It is these merits which are addressed by this judgment.

It is clear from the facts of this matter, which were clarified by both parties on 19 November 2013 after judgment had been reserved on 18 October 2013 that, the basis upon which the Respondent is holding on to the car is that he has an appeal which is pending before the Labour Court as regards his dismissal. To that extent, it is his argument that, since his dismissal is still under contest he should hold onto the car until a definite ruling is made by the appellate court on his dismissal claim.

Further to that, it is important to note that the Respondent’s contract of employment and the Company Vehicle Policy state clearly that, all that the Respondent had over the car is a right of first refusal in the event that the Company decided to sell the car. Whilst it is correct that the car could only be sold after four years and the car which the Respondent is holding onto had also passed the four year mark, it is important to note that, the right could only be invoked after a decision to sell the car would have been made by the Company. There is nowhere in the record where it shows that the Company resolved to sell the car to the Respondent as at the time of his dismissal.

It would therefore be naïve to argue that the Respondent should hold onto the car in the absence of such a resolution to sell. This is particularly so where the contract does not say that the sale of the car is automatic. This therefore puts the Applicant’s rights over the car at a higher scale than those of the Respondent based on a wish that has not materialised yet.

A reading of the authorities cited by both parties on the issue show clearly that, there are two schools of thought on how such an issue should be handled. One school favours the view that the contract of employment which would be the subject of the appeal needs to be dealt with holistically that is, decisions on it affect it and the antecedent benefits that flew from it. To that extent, until the employment issue is resolved, the employer is not at liberty to take away from the employee any benefits under the contract which is under challenge as in the employee’s view; he would be verily believing that he should be legally at work enjoying his benefits but (if it was not) for the employer’s termination of the contract.

The other view is that, once the employee has been dismissed, his benefits also fall away. To that extent the employee has no right at law to hold onto the employer’s property which property he enjoyed using by virtue of the contract which has now been terminated.

Applying the two tests to the facts of the instant case, it is apparent that, all that the Respondent had was a right which he could only exercise after a resolution to sell the car would have been made. That was not done in this case. The basis upon which he used the car is that he was an employee of the Respondent. He has ceased to be such, notwithstanding the fact that, he is challenging his dismissal. He therefore, has no clean/clear claim of right to the said vehicle and his holding onto it is prejudicial to the operations of the Applicant. Even assuming for a while that he succeeded in the dismissal appeal, nothing … the manner in which his contract was worded and the way the motor vehicle policy operated would not give him an automatic entitlement to the said benefit. It is for these reasons that the Court is satisfied that the Applicant has a good case for interim relief and it should succeed. As earlier indicated when the matter was finally argued, it was apparent that issues of res judicata etc. which had earlier on been raised by the parties were abandoned, so this Court did not deem it necessary to rule on these.

IT IS THUS ORDERED THAT

Application for interim relief being with merit, it be and is hereby granted as prayed for by the Applicant.

Each party to bear its’ costs.

L KUDYA

JUDGE – LABOUR COURT

Chirenje Legal Practitioners, applicant’s legal practitioners

Takundwa & Company, respondent’s legal practitioners