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;

2. 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