Court name
Supreme Court of Zimbabwe
Case number
SC 92 of 2004
Civil Appeal 117 of 2004

Nhete and Others v Mudzi Rural District Council (17/04) (SC 92 of 2004, Civil Appeal 117 of 2004) [2004] ZWSC 92 (19 January 2004);

Law report citations
Media neutral citation
[2004] ZWSC 92













DISTRIBUTABLE
(93)


Judgment
No. SC. 92/04


Civil Appeal No. 117/04








TAKAWIRA
NHETE AND TWENTY-ONE OTHERS v





MUDZI RURAL
DISTRICT COUNCIL








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & MALABA JA


HARARE, OCTOBER 7,
2004 & JANUARY 20, 2005








L. Uriri, for
the appellants





C. Warara, for
the respondent









CHIDYAUSIKU CJ: This is an appeal from a decision of the
Labour Court. The appellants applied to the Labour Court for
interim
relief in the form of payment of their salaries and benefits
pending the determination of a labour dispute between the parties.

The labour dispute is pending before an arbitrator. In the Labour
Court the appellants sought the following relief:






“1. That the respondent is hereby ordered to pay the applicants
$177 240 612 being salaries and benefits accrued with
effect from January 2003 to date, with interest.






2. That the respondent be and is hereby ordered to continue paying
the applicants their salaries and benefits until they are dismissed.





3. That the respondent
be and is hereby ordered to pay costs of suit.”







The application was dismissed and the President of the Labour Court
made the following order:






“1. That the suspension letter was in terms of SI 371/83.
Section 3 provides for suspensions without pay or other benefits.





2. The application for
the payment of salaries and benefits pending the finalisation of the
matter is therefore denied.”









The appellants now appeal against the above determination upon the
following grounds:






“1. The court a quo erred in denying appellants the right to
salaries and other benefits until their main matter is finalised.






2. The Labour Court misdirected itself on point of law by holding
that the suspensions were without pay, which assertion is not
provided
in the suspension letters.”








The following relief is
sought in this Court:









“(a) That the order by the Labour Court be substituted;







  1. That
    the respondent be ordered to pay the appellants their salaries and
    benefits until the finalisation of the matter;







(c) Costs of suit.”









The facts of this case are as follows.





The appellants were
employees of the respondent at the material time. In January 2003
they embarked on an industrial action which
the respondent alleges
was illegal. A disposal order against them was issued and they
defied that disposal order. They are also
alleged to have destroyed
or damaged their employer’s property in the course of the
industrial action. Following these events
the respondent suspended
the appellants and sought permission to dismiss them from employment.
In a letter dated 21 January
2003 the respondent advised the
appellants as follows:







“Re:
SUSPENSION FROM DUTY PENDING DISMISSAL





In terms of Statutory
Instrument 371/85, section 3(c), as read together with section 33(j)
of the Mudzi Rural District Council (General
Conditions of Service),
please be advised that Council has suspended you from duty with
effect from 21 January 2003.





The grounds upon which
the suspension is based are that:






- On 15 January 2003, at around 0900 hours, you deflated Council
vehicle





The effects of this
suspension are that:





- You shall not report
to your work place with immediate effect





- During the period of
your suspension, you are not entitled to enter Council premises





- You will not be paid
for the period you were on industrial action.






During your period of suspension, you should inform Council of your
change of address.”









The respondents, as I have said, applied to the Labour Court for
the payment of their salaries and benefits pending the determination
of the labour dispute between the parties. It is not clear from the
application itself in terms of which provision of the law that
application for interim relief was made. In terms of section 97
of the Labour Relations Act [Chapter 28:01] (“the Act”)
an application for interim relief can be made to the Labour Court in
respect of matters that are pending before
the Labour Court. The
relevant section provides as follows:






“97 Appeals to the Labour Court






(1) …







(2) …






(3) …







(4) Pending the determination of an appeal the Labour Court may make
such interim determination in the matter as the justice of the
case
requires.”







Thus the Labour Court only has jurisdiction to determine interim
relief in respect of matters that are pending before it and not
any
other fora. This matter is not pending before the Labour Court.
The record shows that the matter is pending before an arbitrator.






I have serious doubts that the Labour Court had jurisdiction to
entertain the application for interim relief in this matter that
is
not pending before it. On this basis alone this appeal cannot
succeed.





Apart from this, this
case would not succeed on the merits.





It was argued for the
appellants that they were not informed by the respondent that they
were being suspended without salary and benefits.
There is no
substance in this contention. The letter of suspension clearly
states that the appellants were being suspended in
terms of SI 371/85
(“the Regulations”) which clearly provides that an employer may
suspend an employee without salary and
benefits.





If, indeed, the
employer had intended to suspend the appellants on full pay and
benefits in terms of the common law no reference would
have been made
to the Regulations. At common law, the appellants are entitled to
their salaries and benefits upon suspension.
The reference to the
Regulations clearly implies that the appellants were being suspended
in terms of the Regulations and without
pay. The appellants’
conduct after suspension indicates that the appellants understood
this to be the position. The appellants
never asked for their
salary at the end of January after their suspension in the course of
that month. The appellants only asked
for their salaries some
nine-and-a-half months after their suspension. The inescapable
inference to be drawn from this conduct
of the appellants is that
they accepted that they had been suspended without pay. For how
could all the twenty-one appellants fail
to claim their pay at the
end of the first month of suspension if they bona fide
believed that they had been suspended on full pay and benefits?





On this basis I am
satisfied that the employer intended to suspend the appellants
without salary and benefits and the employees understood
and accepted
that to be the position. In my view this is the only reasonable
inference to be drawn from the conduct of both parties.





It was argued on behalf
of the appellants that because the letter of suspension did not
specifically mention that the appellants were
being suspended without
pay and benefits they were therefore suspended in terms of the common
law which entitled them to their pay
during the period of suspension.
For this proposition the appellants’ counsel relied on the case
of Makova v Urban Development Corporation 1992 (1) ZLR 326 (H)
wherein GIBSON J said the following at 328G-330A:







“As to the question whether the suspension was without pay, the
applicant’s contention is that the respondent did not purport
to
suspend the applicant without pay, that the applicant is thus
entitled to his remuneration until he is dismissed.





It is useful to look at
the position under the common law and to examine the reasons given
for the approach of the courts before the
statutory intervention to
appreciate the extent of the changes. At common law the employer
enjoyed the power to dismiss an employee
or to suspend him, but the
right to suspend was only on full pay. See Zimbabwe Sun Hotels
(Pvt) Ltd v Lawn
1988 (1) ZLR 143 (S) which refers with approval
to the case of Myers v SA Railways and Harbours 1924 AD 85.
At p 90 SOLOMON JA in the Myers case supra
rationalises the common law position and the power to suspend a
worker and says:






‘… the general principle underlying a contract of service is that
hire is to be paid in return for services rendered, so that,
prima
facie
, if the services have not been rendered - the servant
would not be entitled to be paid for that period. And accordingly …
if
an unforeseen misfortune, such as sickness, befalls the person who
has left his services and renders him incapable of performing
them
for the whole of the period of his engagement, he can only claim
wages or salary for the time during which he has actually served.

If, however, it was due to his employer that he had been unable to
perform his work, then he would be entitled to be paid,
notwithstanding
that no service had been rendered by him.’






Section 3 of the Regulations changed the common law. It gave the
employer a right to choose whether or not the suspension is
to be
with or without pay. That election, in my view, has to be made at
the time of suspension so that the worker who has not yet
been found
guilty of misconduct and is available to carry on his duties knows
what of his rights or other benefits are affected by
the decision to
suspend him from work. It would be unjust and contrary to the
purposes of the statute and the Regulations to expect
an employee,
suspended say at the end of the month, to wait until the end of the
following month to find out the full terms of the
suspension. The
objectives of the statute (the Labour Relations Act 16 of 1985)
which are defined in the preamble as ‘to
declare and define the
rights of employees’ among others, would be stultified, in my
opinion, if the employer were to be allowed
to leave the employee in
the dark about his changed status.





It does seem unjust and
unfair to leave it to the suspended worker to deduce his rights from
his employer’s future behaviour.
Besides, there may be any number
of reasons why a cheque duly posted may not reach its destination.
Besides this, the Labour Relations
Act and its Regulations sets out
to prescribe a course of conduct to be followed by an employer wishes
(sic) to invoke his rights under the statute he is duty bound
to follow the steps prescribed in the statute to give validity to his
actions.
In conclusion I hold that once the employer decides to
suspend his employee he has to go further and consider whether such
suspension
is to be with or without pay, and having made the decision
the employer must communicate his decision to the employee. The
failure
to communicate the decision to withhold pay during suspension
entitled the employee to expect that he will continue to receive his
pay during that suspension.”












Among other things the learned judge makes the following two points
-






(1) that upon suspension the employer is required to advise the
employee in writing that he or she is being suspended with or
without pay;


(2) that once the
employer has made the election at the time of suspension he cannot
resile from it.






I have no doubt in my mind that it is most desirable that an
employer advises the suspended employee whether he is being suspended
with or without pay and that such notification be in writing for easy
proof. I, however, find nothing in the language of section 3
of the Regulations which prescribes the manner and the timing of
communication of that term of the suspension to an employee. To
that extent Makova’s case supra overstates what is
required of an employer.





In any event, I am
satisfied that the appellants were advised in writing at the time of
suspension that the suspension was without
pay and benefits by
reference to the Regulations.







The letter of suspension could have been more explicit than it was
but I find it sufficiently clear, in that the employees were advised
that their suspension was in terms of the Regulations, and not in
terms of the common law. The employees understood the letter
to
mean that, hence their failure to demand their salaries at the end of
the month of their suspension.






The probabilities in this case are against the appellants. Where
an employee is suspended pending investigations such an employee
has
a legitimate expectation to payment of salary and benefits pending
finalisation of investigations. However, where an employee
is
suspended pending dismissal, as was the case in casu, there is
hardly any basis for expecting such suspension to be on salary and
benefits.






It is for the foregoing
reasons that this appeal has no merit. Accordingly, the appeal is
hereby dismissed with costs.





ZIYAMBI JA: I agree.





MALABA JA: I agree.






Honey & Blanckenberg, appellants' legal practitioners


Warara &
Associates
, respondent's legal practitioners