Court name
Supreme Court of Zimbabwe
Case number
SC 25 of 2004
Civil Application 295 of 2001

Mtetwa v Business Equipment Corporation (95/01) (SC 25 of 2004, Civil Application 295 of 2001) [2004] ZWSC 25 (09 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 25












DISTRIBUTABLE
(19)









Judgment
No. SC 25/04


Civil
Application No.295/01









FARAI MTETWA v BUSINESS EQUIPMENT
CORPORATION








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA, & MALABA JA


HARARE, FEBRUARY 10 &
MAY 10, 2004











A K
Maguchu
, for the appellant





H Zhou,
for the respondent












ZIYAMBI JA: The issue for determination in this appeal is whether
or not the Labour Court should have ordered payment of damages
to the
appellant in lieu of reinstatement.





In his
notice of appeal the appellant stated his ground of appeal thus:-






“The
learned chairman erred in ordering reinstatement without loss of
salary and benefits where the record before him and the parties
in
their addresses had shown that reinstatement would not be a workable
option.”










The
background of this matter is that the appellant was dismissed from
his employment with the respondent following allegations of
misconduct. He appealed against the decision to dismiss him to the
Local Joint Committee of the National Employment Council for
the
Commercial Sector, in terms of the Code of Conduct applicable to him.
The determination of the Local Joint Committee dated
31 October
2000 was as follows:-






“This being the case, the Local Joint Committee ordered the
employer to reinstate the appellant without loss of salary and
benefits
and upheld the appeal.”















The respondent, dissatisfied with the above decision, appealed to the
National Employment Council for the Commercial Sectors’ Negotiating
Committee. Their decision, dated 13 February 2001 (recorded at p
114 of the record) was as follows:-







“On those grounds the Negotiating Committee upheld the decision of
the Mashonaland Local Joint Committee and dismissed the employer’s
appeal. Appellant is ordered to reinstate Respondent without loss
of salary and benefits from the date of dismissal.”







Once again the respondent appealed against the decision, this time to
the Labour Court. The appellant at no stage challenged the
decision given in his favour nor did he cross appeal when the
respondent appealed to the Labour Court. It was only at the hearing
in the Labour Court that the appellant raised this ground of appeal
for the first time. He alleged, that in terms of the then
applicable (but now repealed) s 96(1) (c) of the Labour Relations Act
[Chapter 28:01] (‘the Act’), the Tribunal was obliged to
grant an order for payment of damages as an alternative to
reinstatement. Section
96 (1) (c) of the Act provides:-







“Without derogation from the generality of sections ninety-three
and ninety-five, a determination made in terms of those sections
may
provide for -








  1. reinstatement or employment in a job:








Provided that any such determination shall specify an amount of
damages to be awarded to the employee concerned as an alternative
to
his reinstatement or employment.”











Section 91(1) & (2) (a) & (b) of the Act (also now repealed)
provides:-



“(1) In determining an appeal in terms of this part, the Tribunal
may confirm, vary or set aside the determination appealed against,
or
substitute its own determination for the one appealed against, and
may make any order as to costs.







(2) Subsections (1) to (4) of section ninety-six -









    1. shall apply, mutatis mutandis, where the Tribunal varies a
      determination or substitutes its own determination for the one
      appealed against;











    1. may, at the direction of the Tribunal, mutatis mutandis,
      apply to any determination made by it otherwise than on appeal.”









Thus, in relation to an appeal, it is only where the Tribunal varies
a determination or substitutes its own decision for the one
appealed
against that the proviso comes into effect. In the instant
case, all the Tribunal did was to uphold the decision appealed
against. The proviso was not applicable.







It was submitted by counsel for the appellant that the employer -
employee relationship between the parties had broken down and
for
that reason the Tribunal should have ordered an alternative to
reinstatement in accordance with the principles set out in the
following cases, namely, Hama v National Railways of Zimbabwe 1996
(1) ZLR 664 (S), Commercial Careers College (1980) (Private)
Limited v Jarvis
1989 (1) ZLR 344 (S), Grundling v Beyers &
Ors
1967 (2) SA 131 (W), and Bulawayo Public Library
vs Ngulube
SC 93/2001.







However, I am inclined to agree with the submission by Mr Zhou that:







“The rationale for such a provision [the proviso to s 96 (1)
(c)] which has its foundation in the common law was no doubt to
protect an employer from being compelled to re-employ
an employee in
circumstances where a normal employer employee relationship had
broken down. The position cannot be interpreted as
entitling an
employee to decline to accept an order of reinstatement and making an
election for damages. That is the interpretation
of the common law
which is consistent with the preponderance of judicial thinking. It
is open to the appellant to resign if he so
desires.”











The question of the breakdown of the relationship between the parties
was never raised by the appellant in the lower fora. Indeed,
as stated in the notice of appeal, it was in the closing submissions
by counsel at the end of the hearing before the Tribunal
that this
point was first taken. No evidence of the breakdown of the
relationship having been led, there was no evidence upon
which the
Tribunal could find that the relationship between the parties had
broken down and consider making an order in terms of
the proviso.







Accordingly, the appeal is devoid of merit and it is dismissed with
costs.







SANDURA JA: I agree.











MALABA JA: I agree.











Dube, Manikai & Hwacha, appellant’s legal practitioners



Gill, Godlonton & Gerrans, respondent’s legal
practitioners