Court name
Supreme Court of Zimbabwe
Case number
SC 90 of 2004
Civil Appeal 287 of 2003

Pungwe Breweries (Pvt) Ltd. v Mambondiani and Others (87/03) (SC 90 of 2004, Civil Appeal 287 of 2003) [2004] ZWSC 90 (11 October 2004);

Law report citations
Media neutral citation
[2004] ZWSC 90
















DISTRIBUTABLE
(71)


Judgment
No. SC 90/04


Civil
Appeal No. 287/03








PUNGWE
BREWERIES (PRIVATE) LIMITED v





(1)
SOLOMON MAMBONDIANI AND FORTY-TWO OTHERS





(2)
FLOSSIE MACHAKATA AND SIXTEEN OTHERS








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA  JA & GWAUNZA JA


HARARE,
SEPTEMBER 27 & OCTOBER 12, 2004








R
M Fitches
, for the
appellant





A
M Gijima
, for the
respondents





SANDURA  JA:
This is an appeal against a judgment of the Labour Court which
ordered the appellant company (“the company”)
to reinstate forty
of the respondents as employees of the company without loss of salary
and benefits, or pay them damages in lieu
of reinstatement.






The background facts are as
follows. At the relevant time the respondents were employees of the
company. On 24 November 1999
they held a meeting at Mushando
Beerhall (“the beerhall”), where they discussed their grievances
against the company. After
that meeting, they wrote to the company
indicating that unless their grievances were resolved within two
weeks they would resort
to a collective job action.





When
the two weeks expired and the grievances had not been resolved, the
respondents wrote to the company indicating that they had
extended
the deadline by which their grievances were to be addressed to
28 December 1999.





When
their grievances were not resolved before the new deadline, the
respondents gathered at the beerhall at about 8 am on 28
December 1999. Shortly thereafter, the company ordered the
respondents to disperse and report for duty by 10.30 am on that
day, but the order was ignored. The company then issued an
ultimatum, which was that those employees who did not report for duty
by 12 noon on that day would be dismissed. That, too, was
ignored.





Thereafter,
on 29 December 1999, the company wrote to the respondents
individually, informing them that as they had taken part
in an
unlawful collective job action they had been suspended from duty with
immediate effect, in terms of s 3(1) of the Labour
Relations
(General Conditions of Employment) (Termination of Employment)
Regulations, 1985, published in Statutory Instrument 371
of 1985
(“the Regulations”), pending the authorisation of their dismissal
by the Ministry of Labour.





In
addition, the company, acting in terms of s 3(1) of the
Regulations, applied to a labour relations officer forthwith for a
determination authorising the dismissal of the respondents.





Subsequently,
on 14 November 2000 and 20 February 2001, the labour
relations officer heard the company’s application in
respect of
Flossie Machakata and sixteen others. In his determination,
which was handed down on 29 June 2001, the labour
relations
officer authorised the dismissal of the seventeen employees.





After
that determination, the same labour relations officer heard the
company’s application in respect of Solomon Mambondiani
and
forty-two others, from 20 to 22 August 2001. In his determination,
which was handed down on 29 August 2001, the labour
relations
officer divided the employees into three groups.





The
first group consisted of those employees who were officially off duty
on 28 December 1999 and attended the meeting at the
beerhall at
8 am that day. The labour relations officer ordered that this
group of employees be reinstated without loss of
salary and benefits.





The
second group consisted of those employees who were due to commence
their duties at 10 am on 28 December 1999, but did
not do
so because they were attending the meeting at the beerhall. In
addition, they ignored the ultimatum issued by the company
that
unless they reported for duty by 12 noon they would be
dismissed. The labour relations officer authorised the dismissal
of
this group.





Finally,
the third group consisted of those employees who were supposed to
knock off duty at 10 am. They attended the meeting
at the
beerhall at 8 am when they were supposed to be on duty, but were
not supposed to be on duty after 10 am. The labour
relations
officer ordered that this group be reinstated without loss of salary
and benefits.





However,
after reference to the senior labour relations officer, both matters,
that is to say the matter between the company and Flossie Machakata
and sixteen others, and the one between the company and
Solomon Mambondiani and forty-two others, were heard together by
the
senior labour relations officer on 5 February 2002. In his
determination, which was handed down on 30 April 2002, the
senior labour relations officer authorised the dismissal of all the
employees who had attended the meeting at the beerhall on 28 December
1999, on the ground that they had participated in an unlawful
collective job action.





Aggrieved
by that determination, the employees appealed to the Labour Court.
That court subsequently ordered that the employees
who had been off
duty on 28 December 1999 with the company’s authority, and
those employees who were supposed to knock off
duty at 10 am on
that day were to be reinstated without loss of salary and benefits,
or were to be paid damages in lieu of reinstatement.
However, the
appeal by those employees who were supposed to report for duty at
10 am was dismissed.





Dissatisfied
with the order that some of the employees were to be reinstated or
paid damages in lieu of reinstatement, the company
appealed to this
Court.





The
main issue in this appeal is whether by issuing the ultimatum,
calling upon the respondents to report for duty by 12 noon
or be
dismissed, the company waived its right to dismiss the employees who
had participated in the unlawful collective job action.
The Labour
Court answered this question in the affirmative. In my view, that
answer was correct.






Whether the company waived its
right to dismiss the respondents is a question of fact, and the
onus
rests on the respondents to establish that fact on a balance of
probabilities. As INNES CJ stated in
Laws
v Rutherfurd
1924 AD
261 at 263:






“The
onus
is strictly on the appellant. He must show that the respondent,
with full knowledge of her right, decided to abandon it, whether
expressly or by conduct plainly inconsistent with an intention to
enforce it. Waiver is a question of fact, depending on the
circumstances.”





In
the present case, the company became aware on the morning of
28 December 1999 that the respondents had commenced an unlawful
collective job action and had ignored the order to report for duty.
The company must have been aware that in terms of s 3(1)
of the
Regulations it had the right to dismiss the respondents, upon being
authorised to do so by the Ministry of Labour. Indeed,
the letters
of suspension sent by the company to the respondents on 29 December
1999 constitute ample proof of that knowledge.





Instead
of suspending the respondents from duty and forthwith applying to a
labour relations officer for an order or determination
authorising
the respondents’ dismissal, the company issued the ultimatum that
those employees who did not report for duty by 12 noon
would be
dismissed. What the company was in fact saying was that those
employees who reported for duty by 12 noon would not
be
dismissed.





In
my view, the company with the full knowledge of its right to dismiss
the respondents in terms of s 3(1) of the Regulations
decided to
abandon that right, as clearly indicated by its conduct which was
plainly inconsistent with an intention to enforce that
right.





As
the company abandoned the right to dismiss the respondents for
participating in the unlawful collective job action, the only
employees who could have been lawfully dismissed were those who were
supposed to go on duty at 10 am and who ignored the ultimatum
to
report for duty by 12 noon. However, those employees who were
officially off duty on 28 December 1999 were not supposed
to be
on duty on that day, and those employees who were supposed to knock
off duty at 10 am were not supposed to be on duty
after 10 am
on that day. There was, therefore, no basis on which these two
groups could have been required to report for duty
by 12 noon on
the day in question. The Labour Court’s decision was, therefore,
correct.





In
the circumstances, the appeal is devoid of merit and is, therefore,
dismissed with costs.





CHIDYAUSIKU  CJ:
I agree.





GWAUNZA  JA:
I agree.






Henning, Lock, Donagher &
Winter
, appellant's
legal practitioners


Manase
& Manase
,
respondents' legal practitioners