Rainbow Towers Hotel v Grem Manyika

### Preamble
Judgment No. SC 29/20
1
Civil Appeal No. SC 616/17
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REPORTABLE      (25)

RAINBOW TOWERS HOTEL

v

GREM MANYIKA

SUPREME COURT OF ZIMBABWE

GUVAVA JA, BERE JA & MATHONSI JA

HARARE:	OCTOBER 31, 2019 & FEBRUARY 20, 2020

T. Magwaliba, for the appellant

I. Chiwara, for the respondent

BERE JA: 	The appellant appeals against the whole judgment of the Labour Court sitting at Harare, being judgement LC/H/74/17 handed down on 10 February 2017.

Having attained the age of retirement, the respondent was formerly retired by the appellant on 31 August 2013.  On 13 February 2014 the respondent sought reemployment with the appellant on a fixed contract.  In his application for re-employment the respondent highlighted his serious financial constraints due to his medical condition. The appellant acceded to the respondent’s request and in an effort to assist the respondent, the appellant gave the effective date of re-employment of the respondent as 1 September 2013. The respondent had his salary backdated to that date.

In accordance with the respondent’s request, the appellant prepared a contract for the respondent to sign. The respondent did not show any enthusiasm to sign the contract in question.  On 10 June 2014 the respondent was asked to regularize his employment status before 30 June 2014.  The respondent still did not sign the contract of employment as a result of which the appellant asked him to stop reporting for duty and to leave its premises.  The respondent’s swift reaction was to refer the matter to a Labour Officer citing unfair dismissal.  After conciliation failed the matter was placed before an arbitrator who ruled in favour of the respondent.

Subsequently an appeal was noted to the Labour Court by the appellant.  The Labour Court dismissed the appellant’s appeal on the basis that when the appellant took in the respondent, it continued with him as if there had been no retirement.  It further opined that the appellant should have dealt with the respondent’s refusal and or delay in signing the contract of employment as an act of misconduct, and for which disciplinary proceedings should have been conducted.

The findings of the Labour Court prompted the appellant to file an appeal to this court. The grounds of appeal in this case were given as follows:

“1. The Labour Court grossly erred on the facts, such error therefore amounting to an

error of law by finding that the respondent had been employed on a contract without

the limit of time.

2.  The Labour Court further erred grossly on the facts, such error constituting an error

of law by failing to find that the appellant who had offered the respondent a twelve

months contract of employment which the respondent refused to sign was not

entitled at law to have him removed from the place of employment without a

disciplinary hearing.

3.  Consequently the Labour Court erred at law in upholding the reinstatement of the

respondent without loss of salary and benefits.”

From these grounds of appeal, the appellant sought to have the appeal allowed with costs.

The issues that call for determination have been properly identified by the parties and I list them hereunder as follows:

“1. Whether the court a quo misdirected itself on the facts amounting to an error of law

by concluding that the respondent had been employed on a contract without the limit

of time.

2. Whether the appellant was entitled to summarily terminate the respondent’s

employment for misconduct without a disciplinary hearing.”

At the hearing the appellant submitted that the court a quo had erred and misdirected itself by making a specific finding that the respondent had been employed by the appellant as a permanent employee and on the same conditions that applied to him before retirement.  Appellant’s counsel argued that there was nothing on the facts on record that should have persuaded the court to come to this conclusion.

Counsel further argued that the respondent, by failing or refusing to sign the tabled written contract could not be heard to say he had entered into any contract without limit of time with the appellant or any contract at all.

In closing his submissions, appellant’s counsel submitted that, the respondent’s refusal and or failure to sign the contract of twelve months extended to him meant that he had not accepted the offer for employment and that this failure meant that he could be summarily dismissed without the need for conducting a disciplinary hearing.

In response, the respondent’s counsel put up a brave face and argued that by re-absorbing him into the organization on the same salary that existed before his retirement and back paying him, the appellant ought not to have summarily dismissed the respondent but that such dismissal should have been preceded by a disciplinary hearing in accordance with the appellant’s code of employment.

Counsel further argued that, by awarding respondent a “back pay”, the appellant was confirming that the respondent was being reinstated to his former employment,  That is a contract without limit of time.  In advancing his arguments, counsel sought to rely on the decision by this Court in the Leopard Rock Hotel Company (Pvt) Ltd v Van Beck and Chegutu Municipality v Manyora which cases respectively dealt with the concept of reinstatement and the implications of back pay in general.

It does seem to me that the whole argument put up by the respondent’s counsel misses one fundamental point in this case.  The point being that it is not in dispute that the respondent had been retired and paid all his terminal benefits without raising any objection.  The respondent was only re-employed by the appellant upon a specific request contained in his letter of 13 February 2014 which for convenience I will reproduce hereunder as follows:

“I am a former employee of Rainbow Towers in the Maintenance Department.  I left the organization at the end of August 2013 on early retirement on medical grounds. Since I went on retirement I have had serious financial constraints due to my medical condition and I am therefore kindly requesting management to kindly consider reengaging me on contractual basis to cushion me  I hope management will consider my “request”. (My emphasis)

There can be no debate that what the respondent applied for was a contractual placement, or rather a fixed term contract of employment.  Both the arbitrator and the court a quo could not have, in their assessment, granted the respondent what he had not asked for.  Doing so was a serious misdirection on a question of fact which triggered an error of law.

Secondly, and more importantly, when the appellant asked the respondent to regularize his employment status before 30 June 2014, that invitation amounted to an offer for employment which the respondent declined to accept, and in the process destroyed any contractual relationship between the parties in its inchoate or formative stage.  There was clearly no meeting of the minds between the respondent and the appellant on the issue of employment.  As EBRAHIM JA observed in the case of ROBERT KAZEMBE V THE ADULT LITERACY ORGANIZATION:

“What is clear is that once his probationary period ended and they were dissatisfied with his performance all they needed to have done is to tell him that his services were no longer needed and that would have been the end of the matter.  There was no need to embark on an application to terminate his employment.”

By parity of reasoning, once it became clear that the respondent was not willing to sign the contract of employment which would have embodied the terms of that employment, there was no employment relationship to talk about. The appellant was correct in terminating the relationship in the manner it did.  The position of the law is further put neatly by INNES CJ in the case of LAWS V RUTHERFORD referred to us by counsel as follows:

“Speaking generally, when the acceptance of an offer is conditional to be made within a time or a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

There can be no doubt that in the instant matter the respondent’s actions were calculated to frustrate the appellant.  The respondent’s action of dragging the appellant to the arbitrator was actuated by nothing but avarice, especially given the humanitarian hand that was extended to him by the appellant upon request.

The court a quo fell into a serious error by rubber stamping the decision of the arbitrator without fully examining the facts of this matter.  The issue of reinstatement could not possibly have been legitimately raised by the respondent in the light of his own letter of 13 February 2014, earlier own referred to.

In the result, the appeal ought to succeed.

IT IS ORDERED:

That the appeal be and is hereby allowed with costs.

The order of the court a quo is set aside and substituted by the following:

“The arbitral award dated 30 July 2015 be and is hereby set aside with costs.”

GUVAVA JA:          			I agree

MATHONSI JA: 			I agree

C. Kuhuni Attorneys, appellant’s legal practitioners

Coghlan Welsh and Guest, respondent’s legal practitioners