Everisto Rungano & 3 Ors v City of Harare

### Preamble
Judgment No 22/20
1
Civil Appeal No.SC 825/18
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DISTRIBUTABLE       (16)

EVERISTO     RUNGANO     (2)     STEPHENE     KANYERA     (3)     EMIAS     MURWIR     (4)     TITUS     AVENGWA

v

CITY     OF     HARARE

SUPREME COURT OF ZIMBABWE

PATEL JA AND BHUNU JA AND BERE JA

HARARE SEPTEMBER 20, 2019

R Mabwe, for the appellants

C Kwaramba, for the respondent

BHUNU JA: This is an appeal against the decision of the Labour Court which in turn upheld the decision of the arbitrator dismissing the appellants’ claim for reinstatement on account of unlawful dismissal. At the close of argument, we unanimously dismissed the appeal with no order as to costs. Upon issuance of the order, we indicated that our reasons for the order were to follow in due   course. I now proffer the reasons for the order.

The facts giving rise to the appeal are to a large extent common cause. The undisputed facts are that the appellants were employed by the respondent in its Water Reticulation Department. Sometime in 2006 their Department was transferred to the Zimbabwe National Water Authority (ZINWA) following a directive from the responsible Minister. On 30 September 2006 the Minister wrote to the respondent directing that the water and sanitation utility be transferred to ZINWA with effect from 1 December 2006. The respondent complied with the directive and notified the appellants.

Upon transfer of the Department to ZINWA, the  appellants automatically ceased to be the respondent’s employees as they had become employees of ZINWA by operation of law in terms of s 16 of the Labour Act [Chapter. 28:01].

The section provides as follows:

“16 Rights of employees on transfer of undertaking

Subject to this section, whenever any undertaking in which any persons are employed is alienated or transferred in any way whatsoever, the employment of such persons shall, unless otherwise lawfully terminated, be deemed to be transferred to the transferee of the undertaking on terms and conditions which are not less favourable than those which applied immediately before the transfer, and the continuity of employment of such employees shall be deemed not to have been interrupted”.

The Act does not define the term ‘undertaking’. The term should however be given a wide purposive interpretation which according to the Thesaurus Dictionary is synonymous with, “responsibility, job, task, enterprise, commission, mission, duty or activity”. The law maker’s intention was to safeguard and guarantee the employees’ continued employment whenever there is a transfer of their employer’s undertaking to another business enterprise.

Section 16 of the Act makes it clear that whenever an employer’s undertaking is transferred to another entity the employees in that undertaking automatically by operation of law cease to be employees of the previous employer and become employees of the transferee.

Despite the termination of their respective contracts of employment by operation of law, the appellants resisted transfer to ZINWA arguing that they were not liable for transfer to ZINWA because the nature of their employment as automotive  mechanics did not fall under the Water Reticulation Department. On the basis of that argument, the appellants did not report for duty at ZINWA. Notwithstanding their argument it was common cause that their job description had to do with the repair and maintenance of the Water Reticulation Department vehicles which had been transferred to ZINWA lock stock and barrel.

It is common cause as correctly found by the Arbitrator that following their transfer to ZINWA the appellants received payslips from ZINWA for the month of January 2007. Notwithstanding receipt of payslips from ZINWA, the appellants refused to tender their services to it but continued to tender their services to the respondent despite the termination of their respective contracts by operation of law. In their concerted refusal to be transferred to ZINWA, the appellants did not report for duty at the ZINWA Highfield workshops as directed.

In frustration, ZINWA had to engage other employees to replace them.  The appellants were accordingly removed from the ZINWA payroll and other workers employed in their place and stead. Upon transfer of an undertaking, employees have an election whether or not to join the new employer as prescribed by law. By refusing to report for duty at the ZINWA workshops the appellants were within their rights. They could not be forced to be employees of ZINWA against their will.

As the appellants had ceased to be the respondent’s employees there was no longer any employer/employee relationship between the parties. In terms of s 3 of the Labour Act [Chapter 28:01], the Act only applies to labour disputes between employers and their employees other than those whose conditions of service are provided for under the Constitution. It provides as follows:

3 Application of Act

“(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.”

The dispute in this case arose after the appellants had lawfully ceased to be employees of the respondent by operation of law.  All remedies provided by or under the Act against the respondent were therefore automatically extinguished in tandem with their status as employees of the respondent. That the undertaking was subsequently transferred back from ZINWA to the respondent is an irrelevant consideration since they were not ZINWA employees at the time of transfer back to the respondent.

The remedy of reinstatement is only available to an employee whose employment has been wrongfully or unlawfully terminated by the employer. Considering that the termination of the appellants’ employment with the respondent was lawful, the remedy of reinstatement was unavailable to them against the respondent. It follows therefore, that the appellants’ claim for reinstatement against the respondent is misplaced as it has no foundation in fact or at law.

That being the case, both the court a quo and the arbitrator cannot be faulted for dismissing the appellants’ claims for reinstatement. It is for the foregoing reasons that we unanimously dismissed the appellants’ appeals at the close of argument with no order as to costs, as the respondent had graciously not insisted on costs.

PATEL JA			I agree

BERE JA			I agree

Muzangaza Mandaza & Tomana, the Appellants’ Legal practitioners.

Mbidzo Muchadehama & Makoni, the Respondent’s Legal Practitioners.