Conditions of employment https://old.zimlii.org/taxonomy/term/10403/all en Chipangura And 5 Others v Kwekwe City Council And Another (SC 27-21, Civil Appeal No. SC650/19) [2021] ZWSC 27 (01 April 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/27 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>  (26)</strong></p> <p> </p> <ol> <li><strong>HONEST     CHAPANGURA     (2)     OVERAGE   KUVHEYA                      (3)     MAXWELL     MTAKIWA     (4)     JOSIAH    DHOBHA     (5)     COSMAS     GACHA     (6)     FREDDIE    MANYATERA     </strong></li> <li> </li> </ol> <ol> <li><strong>    KWEKWE     CITY     COUNCIL     (2)     DELIWE     MAKOTA</strong></li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE: JULY 14, 2020 &amp; APRIL 1, 2021</strong></p> <p> </p> <p> </p> <p><em>G. Masikati</em> for the appellants</p> <p><em>J. Nyarota</em> for the first respondent</p> <p> </p> <p> </p> <p><strong>UCHENA JA:           </strong>This is an appeal against the whole judgment of the Labour Court handed down on 1 August 2019, dismissing an application for the confirmation of a draft ruling of a labour officer (second respondent), to the effect that transfer of the employees (appellants) from Kwekwe Brewery to the first respondent constituted a transfer of an undertaking in terms of s 16 (1) of the Labour Act [<em>Chapter 28.01</em>].</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The detailed facts of the case can be summarised as follows;</p> <p> </p> <p>The appellants are former employees of Kwekwe Brewery a company duly incorporated in terms of the laws of Zimbabwe. The first respondent (Kwekwe City Council) is Kwekwe Brewery’s sole shareholder. As a result of Kwekwe Brewery’s financial difficulties the first respondent entered into a management agreement with Limsol Trading which was to manage the affairs of Kwekwe Brewery for five (5) years between 2010 and 2015. As early as 2011, Limsol Trading started experiencing viability problems in its management of Kwekwe Brewery. In 2012, the first respondent applied for and was granted a Bank loan to support the financial position of Kwekwe Brewery. According to minutes of a meeting of 6 May 2016 on Kwekwe Brewery’s financial position the Brewery owed the Bank USD 53 000 and was making a loss of USD 23 000 per month. A decision was made to lay off all casual employees and reduce working hours of permanent employees with immediate effect. Kwekwe Brewery was eventually closed. To avoid loss of employment due to the Brewery’s closure, the appellants entered into and signed contracts of employment on transfer from Kwekwe Brewery to the first respondent. They were on 5 September 2016 offered jobs totally different from those they had with Kwekwe Brewery. For example, the first appellant who was a Marketing Manager with Kwekwe Brewery was employed as a debt collection Supervisor grade 4. The fourth appellant who was a Production Manager with Kwekwe Brewery was employed as a Municipal Policeman Grade B3. They worked for the first respondent from 5 September 2016 to 19 October 2017 when they raised an issue of unfair labour practice with a labour officer.</p> <p> </p> <p>The appellants lodged a complaint of unfair labour practice with the second respondent alleging that they had been transferred to the first respondent on less favourable terms and conditions in contravention of s 16 (1) of the Labour Act [<em>Chapter 28:01</em>]. They alleged that the first respondent had unilaterally altered their contracts of employment upon transfer of an undertaking and that they were put under less favourable terms which had resulted in their salaries and other benefits being reduced. They prayed that they be reinstated in their former jobs and the terms and conditions which applied to them before the transfer be restored.</p> <p> </p> <p>In response to the complaint, the first respondent denied that there had been a transfer of an undertaking as envisaged by s 16 (1) of the Labour Act. It submitted that the undertaking, (Kwekwe Brewery) had closed due to viability challenges. It, therefore, submitted that there was no undertaking which could be transferred in the circumstances. It averred that s 16 (1) of the Labour Act was intended to apply to a situation where an undertaking or business is transferred to another person and that it was not intended to apply to a situation where employees are transferred to another organisation following the closure of the undertaking by which they were employed. Alternatively, it was submitted that if indeed there had been a transfer of an undertaking, it had been one in which the appellants voluntarily agreed to terms and conditions which were less favourable than those they enjoyed before the transfer.</p> <p> </p> <p>In determining the dispute between the parties, the second respondent found that there had been a transfer of an undertaking and ruled that the first respondent pay the appellants salaries equivalent to those they enjoyed before the transfer.  Thereafter, the second respondent in compliance with the provisions of s 93 (5a) (a) and (b) applied to the court <em>a quo</em>, for the confirmation of her draft ruling. The first respondent opposed the application, arguing that there had been no transfer of an undertaking from Kwekwe Brewery to it. The first respondent argued that it was not legally possible for Kwekwe Brewery, which it owned, to be transferred to it. It argued that there was no change of ownership of the Brewery.</p> <p> </p> <p>After perusing documents filed of record and hearing the parties, the court <em>a quo </em>held that the facts of the matter did not support the claim that there had been a transfer or alienation of Kwekwe Brewery as an undertaking to the first respondent. It further held that it was not proved that the first respondent acquired the assets, liabilities and total operations of Kwekwe Brewery, but that there had been a transfer of employees by way of the contracts of employment entered into by the parties. As a result, it held that there had been no transfer of an undertaking and dismissed the application for the confirmation of the draft ruling.</p> <p> </p> <p>Aggrieved by the decision of the court <em>a quo</em>, the appellants noted an appeal to this Court on the following grounds:</p> <p><strong>GROUNDS OF APPEAL</strong></p> <p>“1.       The court <em>a quo</em> erred at law in holding that there was no transfer of an  undertaking when this is clear in the circumstances of the case as envisaged in terms of s 16 (1) of the Labour Act [<em>Chapter 28:01</em>].</p> <p> </p> <p>2.   The Court <em>a quo</em> erred at law in giving s 16 (1) of the Labour Act [<em>Chapter 28:01</em>] an unreasonable restrictive interpretation which interpretation defeats or contradicts the purpose the section was enacted to achieve when the Court ruled that:-</p> <ol> <li>There was a transfer of employees and not a transfer of assets which transfer of employees on its own is transfer of an undertaking.</li> <li>First Respondent acquired no assets, no liabilities and no total operation of Kwekwe Brewery but such transfer of employees is transfer of assets and liabilities. No question was in issue on this.</li> <li>There was a distinction between the facts in <em>Mutare Rural District Council v Chikwena </em>2000 (1) ZLR 534 (S) when in actual fact there was no such distinction.”</li> </ol> <p> </p> <p> </p> <p>The appeal raises two issues for determination.</p> <p> </p> <ol> <li>Whether or not the court <em>a quo</em> correctly found that there was no transfer of an undertaking in terms of s 16 (1) of the Labour Act?</li> <li>Whether or not if a transfer took place the appellants accepted less favourable terms than those they enjoyed before the transfer.</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUBMISSIONS MADE BY THE PARTIES.</strong></p> <p>Ms<em> Masikati</em> for the appellants submitted that the court <em>a quo</em> erred by failing to give s 16 (1) of the Labour Act a broader meaning in light of the words “in anyway whatsoever”. Counsel for the appellants contended that the words “in anyway whatsoever” demonstrated that a transfer of an undertaking may take any form as long as there is a change of hands. She argued that a transfer of employees from Kwekwe Brewery to the first respondent constituted a transfer of an undertaking as held in the case of <em>Mutare Rural District Council v Chikwena </em>2000 (1) ZLR 534 (S). She further averred that the first respondent unilaterally varied the appellants’ conditions of employment to less favourable conditions without consultation. Counsel for the appellants asserted that this constituted a breach of s 16 of the Labour Act and prayed that the decision of the court <em>a quo</em> be vacated.</p> <p> </p> <p>Mr<em>. Nyarota</em> for the first respondent submitted that Kwekwe Brewery was not alienated or transfered  as a going concern as it merely ceased operations due to viability challenges. He contended that the transfer of employees alone did not constitute a transfer of an undertaking as envisaged by s 16 (1) of the Labour  Act. He further submitted that the court <em>a quo</em> did not decide on whether or not the appellants had agreed to less favourable terms and conditions than those they enjoyed before the alleged transfer which he submitted had a bearing on the relief sought by the appellants and was an issue which the court <em>a quo</em> was seized with. Counsel for the first respondent prayed that the appeal be dismissed with costs as it was devoid of merit.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>The law which the court <em>a quo</em> had to interpret and apply in determining whether or not to confirm the draft ruling related to, the question in what circumstances can an undertaking be said to have been alienated or transferred in terms of s 16 (1) of the Labour Act. Section 16 (1) of the Labour Act reads as follows:</p> <p>“<strong>16 Rights of employees on transfer of undertaking</strong></p> <ol> <li>Subject to this section, <strong>whenever any undertaking in which any persons are employed is alienated or transferred in any way whatsoever, the employment of such persons shall, unless otherwise lawfully terminated, be deemed to be transferred to the transferee of the undertaking</strong> on terms and conditions which are not less favourable than those which applied immediately before the transfer, and the continuity of employment of such employees shall be deemed not to have been interrupted. (emphasis added)</li> </ol> <p> </p> <p>The critical words which determine the issue and have to be interpreted are, “<strong>whenever any undertaking</strong> <strong>in which any persons are employed</strong> <strong>is alienated or transferred in any way whatsoever,</strong> <strong>the employment of such persons shall, unless otherwise lawfully terminated, be deemed to be transferred to the transferee of the undertaking</strong>”.</p> <p> </p> <p>Section 16 (1), therefore simply means, when an undertaking/business is alienated or transferred, its employees whose employment is not otherwise lawfully terminated, are deemed to have been transferred with it to the transferee. This means the undertaking/business must first be alienated or transferred to the transferee, before the employee’s rights to continued employment can be deemed to have been transferred to the transferee. The employees’ rights to continued employment under the transferee are, therefore, activated by the alienation or transfer of the undertaking/business to the transferee. The words <strong>“whenever any undertaking</strong> <strong>in which any persons are employed is alienated or transferred</strong>” are significant. It is the undertaking’s/business’ alienation or transfer which triggers the simultaneous transfer of the employees to the transferee. The employees’ transfer arises from their being employees of the alienated or transferred undertaking/business.</p> <p> </p> <p>The law on what is an undertaking and how it is alienated or transferred was discussed in the case of <em>Mutare Rural District Council v Chikwena </em>2000 (1) ZLR 534 at                p 537C-E, where GUBBAY CJ said:</p> <p>“The word undertaking is of variable meaning. Basically, the idea it conveys is that of a <em>business or enterprise</em>. In the Australian case of <em>Top of the Cross (Pty) Ltd v Federal Commissioner of Taxation</em> (1980) 50 FLR 19, Woodward J said at 36:</p> <p> </p> <p>‘Frequently, the word undertaking is used in circumstances where it could be interchanged with either the word <em>business or enterprise</em> and with varying shades of meaning. Sometimes it is used alone, sometimes by way of distinction from the assets of the owner and sometimes as a synonym for business. Sometimes it is used to embrace the property which is used in connection with the undertaking as well as the debts and liabilities which have arisen in relation thereto.’</p> <p> </p> <p>In this matter, <strong>it is indisputable that what was transferred to CIG was the</strong> <strong>appellant’s viable and separate business, the Mutare Furniture and Hardware factory. It had  its own set of employees under the control and</strong> <strong>supervision of production and factory managers. It was an undertaking as</strong> <strong>contemplated and sactioned by s 16 (1)</strong>.”</p> <p> </p> <p> </p> <p> </p> <p>At p 537F to 538C GUBBAY CJ compared our s 16 (1) with s 197 of the South African Labour Relations Act 1995, which was interpreted in <em>Manning v Metro Nissan</em> (1998) 19 ILJ 1181 (LC) at 1189 as follows:</p> <p>“What these subsections provide for <strong>is that a business , trade or undertaking is sold as a going concern, the purchaser for all intents and purposes, vis-a –vis the employees of the business, trade or undertaking purchased, puts</strong> <strong>himself in the place of the seller. Consequently, all the rights and obligations that existed between, the seller and its employees are transferred by operation of this section to the purchaser.” </strong>(emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>The phrase “in any way whatsoever,” concerning alienation or transfer of an undertaking in s 16 (1) does not connote a broader interpretation as submitted by counsel for the appellants because the mere transfer of the employees cannot be said to be a transfer of an undertaking. Several considerations must be taken into account. This was aptly illustrated in <em>Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others</em> 2012 (1) SA 321 (CC), where it was held that “for a transfer to be established there must be components of the original business which are passed on to the third party”.  These components would include, but not be limited to, the taking over of employees, assets (tangible or intangible), customers, debtors and the business would maintain or continue its activities whilst retaining its identity.</p> <p> </p> <p>Therefore, the mere transfer of employees from one employer to another on its own cannot be taken to constitute a transfer of an undertaking. While the Labour Act seeks to protect the rights of both the employer and the employee, for s 16 (1) to apply there must be an alienation or transfer of an undertaking/business in any way whatsoever and such transfer is not of employees alone.</p> <p> </p> <p>In<em> Mutare Rural District Council</em>, (<em>supra)</em>, this Court held that a business, trade or undertaking must be transferred as a going concern, “that is to say, what is taken over must be an active and operating business, trade or undertaking.” These sentiments were fortified in the South African case of <em>National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others </em>2003 (3) SA 1 (CC)<em>,</em> where the Constitutional Court stated that:</p> <p><strong>“…in deciding whether a business has been transferred as a going concern, regard must be had to the substance and not the form of the transaction.A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred, such as the transfer or otherwise of assets both tangible and intangible, whether or not the workers are taken over by the new employer, whether customers are transferred and whether or not the same business is being carried on by the new employer.</strong>  What must be stressed is that <strong>this list of factors is not exhaustive and that none of them is decisive individually.  </strong>They must all be considered in the overall assessment and therefore <strong>should not be considered in isolation</strong>…” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>Similar sentiments were echoed in the case of <em>Spijker Gebroeders Benedik Abattoir v Alfred Benediken Zonen</em> [1986] 2 CMLR 296, where it was stated that:</p> <p>“The decisive criterion is whether the business in question retains its identity. Consequently, a transfer of an undertaking; business or part of a business does not occur merely because its assets are disposed of.<strong> Instead, it is necessary to consider whether the business was disposed of as a going concern, as would be indicated, <em>inter alia</em> by the fact that its operations were actually continued or resumed by the (new) employer, with the same or similar activities…</strong>” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>The provisions of s 16 (1)  are subject to the provisions of the whole section. Subsections 2 to (3) provide as follows:</p> <p>“(2) Nothing in subsection (1) shall be deemed—</p> <p>(<em>a</em>)  to prevent the employees concerned from being transferred on terms and conditions of employment which are more favourable to them than those which applied immediately before the transfer, or from obtaining terms and conditions of employment which are more favourable than those which applied immediately before, or subsequent to, the transfer;</p> <p> </p> <p>(<em>b</em>)   to prevent the employees concerned from agreeing to terms and conditions of employment which are in themselves otherwise legal and which shall be applicable on and after the transfer, but which are less favourable than those which applied to them immediately before the transfer:</p> <p>Provided that no rights to social security, pensions, gratuities or other retirement benefits may be diminished by any such agreement without the prior written authority of the Minister;</p> <p> </p> <p>(<em>c</em>)  to affect the rights of the employees concerned which they could have enforced against the person who employed them immediately before the transfer, and such rights may be enforced against either the employer or the person to whom the undertaking has been transferred or against both such persons at any time prior to, on or after the transfer;</p> <p> </p> <p>(<em>d</em>)  to derogate from or prejudice the benefits or rights conferred upon    employees under the law relating to insolvency.</p> <p> </p> <p>(3)    It shall be an unfair labour practice to violate or evade or to attempt to violate or evade in any way the provisions of this section”.</p> <p> </p> <p> </p> <p>A reading of the whole section besides adding that employees can get more favourable conditions or agree to less favourable conditions and the preservation and non-diminution of rights to social security, pensions, gratuities or other retirement benefits, without the Minister’s authority, and the non-derogation of employees’ rights under the law of insolvency, does not change the interpretation discussed above. The meaning remains that, it is the alienation or transfer of the undertaking/business which triggers the transfer of employees.</p> <p>         </p> <p>There must, therefore, be alienation or a transfer of an undertaking before employees of the transferred undertaking can claim to have become employees of the transferee in terms of s 16 (1).</p> <p> </p> <p><strong>WHETHER OR NOT THE COURT <em>A QUO</em> CORRECTLY FOUND THAT THERE WAS NO TRANSFER OF AN UNDERTAKING IN TERMS OF S 16 (1)OF THE LABOUR ACT? </strong></p> <p> </p> <p>Ms <em>Masikati</em> for the appellants sought to rely on the case of <em>Mutare Rural District Council </em>(<em>supra</em>) to advance an argument that the transfer of employees of an undertaking can on its own, constitute the alienation or transfer of an undertaking. She also argued that the facts of this case are on all fours with those of the <em>Mutare Rural District Council</em> case (<em>supra</em>). She did not correctly understand the facts of the case. In that case <em>Mutare Rural District Council</em> formed a limited liability company known as Council Income Generator (Private) Limited (CIG) to which it transferred its interests in Mutare Furniture and Hardware factory. Mutare Rural District Council held all the shares in CIG. It, however, eventualy sold all its shares in CIG to third parties who became the transferees of CIG and took over its employees.</p> <p> </p> <p>In this case, Kwekwe City Council  (the first respondent) did not sell its shares in Kwekwe Brewery. It remains the sole shareholder of Kwekwe Brewery. As explained above Kwekwe Brewery was closed and stopped operating without being alienated or transferred to a third party. Its employees signed new contracts of employment with the first  respondent which are totally different from those they had with Kwekwe Brewery. The undertaking that the appellants worked for before their new contracts with the first respondent was not transferred to the first respondent. There was, therefore, no alienation or transfer of Kwekwe Brewery to the first respondent. As a result, there was no transfer of its employees to the first respondent in terms of s 16 (1).</p> <p> </p> <p>A reading of the record establishes that Kwekwe Brewery has always been owned by the first respondent, therefore, it is not correct to say that the business changed hands. The first respondent could not be both a transferor and a transferee of Kwekwe Brewery. It could not alienate or transfer its business to itself.</p> <p> </p> <p>The court <em>a quo,</em> therefore, correctly dismissed the application to confirm the second respondent’s draft ruling  to the effect that the appellants had been transferred to the first respondent in terms of s 16 (1) and were entitled to the salaries and benefits that they enjoyed as employees of Kwekwe Brewery.</p> <p> </p> <p> </p> <p><strong>WHETHER OR NOT IF THE TRANSFER TOOK PLACE THE APPELLANTS ACCEPTED LESS FAVOURABLE TERMS THAN THOSE THEY ENJOYED BEFORE THE TRANSFER.</strong></p> <p> </p> <p>In view of the definitive finding that there was no transfer of an undertaking this issue need not be determined. The determination of whether or not there was a transfer of an undertaking also determines this issue as an employee can only exercise the option of accepting less favourable terms if the institution he was working for has been transferred to a new employer. The court <em>a quo,</em> therefore, correctly abstained from determining this issue.</p> <p> </p> <p><strong>DISPOSITION.</strong></p> <p>The appeal has no merit and must be dismissed. Costs will follow the result.</p> <p> </p> <p>In the result the appeal is dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ</strong>                             I agree   </p> <p> </p> <p> </p> <p><strong>GUVAVA JA     </strong>                              I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Mavhiringidze &amp; Mashanyare</em>, appellants’ legal practitioners</p> <p><em>Wilmot &amp; Bennett</em>, first respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/27/2021-zwsc-27.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=46172">2021-zwsc-27.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/27/2021-zwsc-27.pdf" type="application/pdf; length=463710">2021-zwsc-27.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-employment">Conditions of employment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Tue, 20 Apr 2021 07:42:47 +0000 Sandra 9991 at https://old.zimlii.org Mubvumbi v City of Harare (SC 64/18, Civil Appeal No. SC 1079/17) [2018] ZWSC 64 (22 October 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/64 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (57)      </strong></p> <p> </p> <p><strong>MISHECK     MUBVUMBI  </strong></p> <p><strong>v   </strong></p> <p><strong>CITY     OF     HARARE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, HLATSHWAYO JA &amp; PATEL JA</strong></p> <p><strong>HARARE MAY 29, 2018 &amp; 22 OCTOBER 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>R Mabwe</em> and <em>C Mafongoya,</em> for Appellant</p> <p><em>L Uriri,</em> for Respondent.</p> <p> </p> <p> </p> <p><strong>MAKARAU JA:</strong>            This is an appeal against the entire judgment of the Labour Court handed down on 13 November 2015. In that judgment, the court <em>a quo</em> dismissed an application for review, brought by the appellant against the decision by the respondent summarily retiring him from employment at age 60.</p> <p> </p> <p>Aggrieved by the decision, the appellant raised 6 grounds of appeal. These grounds of appeal raise three main issues as follows:</p> <ol> <li>Whether the appellant’s retirement age from employment was 60 or was 65 years;</li> <li>Whether or not the summary retirement of the appellant at 60 years was in essence a retrenchment; and</li> <li>Whether the respondent discriminated against the appellant in retiring him at 60 years when other employees were allowed to retire beyond that age.</li> </ol> <p> </p> <p><em>THE FACTS</em></p> <p>The facts giving rise to this dispute are largely common cause. I set them out hereunder.</p> <p> </p> <p>The appellant was employed by the respondent in 1981 as a Junior Treasury Officer.  It was a specific term of his contract of employment that his conditions of service would be governed by the provisions of the Industrial Agreement Salisbury Municipal Undertaking: General Conditions of Service Agreement contained in SI 147 of 1981. That statutory instrument provided in s 19 thereof, that the normal age of retirement of an employee would be 65 years.</p> <p> </p> <p>Statutory Instrument 147 of 1981 was repealed and replaced by various subsequent statutory instruments. These subsequent instruments were all collective bargaining agreements between the respondent and its employees providing for one or more aspects of conditions of service.</p> <p> </p> <p>In particular and of relevance to this appeal, SI 135 of 2012 reduced the normal retirement age for the respondent’s employees from 65 to 60 years.  </p> <p> </p> <p>In addition to the various collective bargaining agreements governing their conditions of service, the parties also contributed to the Local Authorities Pension Fund which had its own regulations.  These regulations provided for various ages of retirement from the fund by contributors, ranging from 55 to 65 years, and effectively mirrored the retirement ages provided for in SI 135 of 2012.</p> <p> </p> <p>It is not in dispute that the appellant was a member and contributed to this pension fund.</p> <p> </p> <p>On 18 March 2014, the respondent wrote to the appellant, advising him that he had reached normal retirement age and was being retired with immediate effect. The appellant approached the court <em>a quo </em>on review, contending that the actions of the respondent were unlawful and that he had a legitimate expectation to be retired at 65. The application was opposed with the respondent arguing that the appellant had attained the normal retirement age in line with the provisions of the governing collective bargaining agreement in force (i.e. SI 135/2012) and the regulations of the Pension Fund.</p> <p> </p> <p><em>THE ISSUE</em></p> <p>The issue between the parties before the court <em>a quo</em> was therefore a crisp one. It was whether or not the decision by the respondent to retire the appellant at age 60 as fixed by the collective bargaining agreement and the pension fund was lawful.</p> <p> </p> <p><em>THE DECISION OF THE COURT A QUO</em></p> <p>In holding that the decision by the respondent to retire the appellant at 60 was lawful, the court<em> a quo</em> found that whereas there had been many changes to the various collective bargaining agreements governing the conditions of service of the Harare City Undertaking, the provisions of the pension regulations had remained constant and these are what the respondent resorted to in summarily retiring the appellant. The court <em>a quo</em> then proceeded to find that because the appellant had not “told” the court that he was not a contributor to the pension fund, his retirement was governed by the scheme.</p> <p> </p> <p>Was the appellant’s age of retirement from employment fixed by the pension fund regulations? I think not.</p> <p> </p> <p><em>THE LAW</em></p> <p>The legal position presents itself clearly to me that the regulations of any pension fund do not fix the age at which the employee will retire from employment unless, expressly or impliedly, the employer and the employee agree that this be so.</p> <p> </p> <p>The setting up and administration of pension funds in this jurisdiction is governed by the provisions of the Pensions and Provident Funds Act [<em>Chapter 24.09</em>]. The Act provides for pension and provident funds to make their own rules or regulations.</p> <p> </p> <p>It is trite that the rules and/or regulations of a pension fund, provided for in s 7 of the Act, invariably fix the age at which contributors retire from making contributions to the fund. The Local Authorities Pension Fund, the fund in issue in this appeal, did. This age is also referred to as the retirement age. The Act however clearly provides that such an age may be attained with or without the termination of employment.</p> <p> </p> <p>I therefore read the Act in this regard as providing that one may be regarded as having retired for the purposes of the Act and therefore eligible to receive a pension, without necessarily having retired from employment. In other words, retiring from the pension fund does not always mark an employee’s retirement from employment. The two retirements can occur on different dates. Thus, in my view, one may clearly and lawfully attain retirement age for the purposes of the Act whilst still in employment. Whilst my understanding of the law in this regard is not directly relevant to the facts of this appeal, in my view, it underscores the clear legal position that the retirement age fixed by the pension scheme is not, in the absence of consent by both parties to that effect, necessarily the same age at which one must retire from employment.</p> <p> </p> <p>Where, therefore, the employer intends to apply the retirement age that is fixed by the pension fund for the purposes of retiring employees from employment, it must import this age, with the consent of the employees, into the conditions of service.</p> <p> </p> <p><em>In casu,</em> the respondent, perchance being alive to this legal requirement, aligned the retirement age of the rest of its employees to the age fixed by the pension fund by way of SI 135 of 2012.</p> <p> </p> <p>It is not in dispute that SI 135/12 is inapplicable to the appellant by reason of his position. The statutory instrument applies to all employees in grades 16 to 5. It therefore expressly excludes persons employed in grades 1 to 4. The appellant is employed in a grade 2 position.</p> <p> </p> <p>The court <em>a quo</em> correctly found that the statutory instrument does not apply to the appellant. It however erroneously proceeded to find that the retirement age as fixed by the pension scheme regulations then becomes applicable. As discussed above, the regulations of the pension fund, not being an agreement between the employer and the employee, cannot fix the employee’s retirement age from employment.</p> <p> </p> <p>It is therefore my finding that mere membership of a pension fund, without other evidence tending to show that the parties agreed to import the retirement age as fixed by the pension scheme into the contract of employment, is not adequate basis for holding that the age of retirement as fixed by the pension fund is the same as the age of retirement from employment.</p> <p> </p> <p>With respect, it does not appear that the court <em>a quo</em> was alive to the need to first find that there was agreement between the parties that the age of retirement as fixed by the pension fund would be the age of retirement from employment. The court appears to have proceeded on the basis that retirement from the pension fund is synonymous with retirement from employment.  Thus, the court <em>a quo</em> did not search for any evidence tending to show that there was such an agreement between the parties.</p> <p> </p> <p> There is no such evidence on record.</p> <p> </p> <p>In disposing of the matter as it did, the court purported to rely on the decision of this Court in the matter of <em>Athol Evans Hospital Home v Monica Maruta</em> SC 66/05. Such reliance is with respect an incorrect reading of the <em>ratio decidendi</em> in the case.</p> <p> </p> <p> In the <em>Athol Evans Hospital</em> case, the respondent and the appellant were contributors to a pension scheme, (the Southampton Scheme), that set the retirement age at 60 years. The retirement age set by the pension scheme was consistent with the National Security Social Authority Scheme (“NSSA Scheme”) retirement age at the time.  The NSSA Scheme retirement was subsequently amended to 65 years. When retired at 60, the respondent challenged her retirement at that age, alleging that she should have been given an option to elect to retire at 65 in terms of the NSSA Scheme.</p> <p> </p> <p>Quite clearly, the respondent in the <em>Athol Evans</em> <em>Hospital</em> case did not challenge the applicability of the retirement age as fixed by the Southampton Scheme to her. She was of the view that she should have been given an opportunity to agree to be bound by the NSSA scheme instead.</p> <p> </p> <p>It was in rejecting that contention that this Court held that the respondent had made her election to join the Southampton Scheme in terms of which she was retired as the two schemes were in operation at the time she made the election. In the passage cited by the court <em>a quo</em> in its judgment, this Court held that by joining the Southampton Scheme, the respondent accepted to retire at the age of 60.</p> <p> </p> <p>The <em>Athol Evans Hospital</em> case is clearly not authority for the proposition that the regulations of a pension scheme, in the absence of express or implied agreement of the parties to that effect, will fix the retirement age from employment. The case was simply decided on the employee’s election to be bound by one and not the other of the two schemes that operated at the same time. I read the judgment as taking it as understood that both parties had agreed to the retirement age fixed by the Southampton Scheme. The changes introduced by the NSSA Scheme later were of no moment as the parties had not agreed to be bound by those later changes expressly or impliedly.</p> <p> </p> <p>Having found that the respondent failed to show that it had acted lawfully in retiring the appellant at 60, the court <em>a quo</em> erred in dismissing the appellant’s review application.</p> <p> </p> <p>The first issue raised by the appellant’s grounds of appeal must be answered in favour of the appellant. There is no basis upon which the respondent retired the appellant at 60. It was neither a specific term of the contract of employment between the parties nor a provision of any collective bargaining agreement that applied to him.</p> <p> </p> <p>The first ground of appeal is with merit and must be upheld. In view of that finding, it becomes unnecessary to deal with the other grounds of appeal giving rise to the second and third issues.</p> <p> </p> <p>Regarding costs, no basis exists to depart from the general rule that they follow the cause.</p> <p> </p> <p>In the result, I make the following order:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is hereby set aside and substituted with the following:</li> </ol> <p>“a) The application for review is granted with costs.</p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:</strong>           I agree</p> <p> </p> <p><strong>PATEL JA:</strong>                           I agree</p> <p> </p> <p><em>J Mambara &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>Chihambakwe Mutizwa &amp; Partners</em>, respondent’s legal practitioners.</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/64/2018-zwsc-64.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33174">2018-zwsc-64.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/64/2018-zwsc-64.pdf" type="application/pdf; length=131776">2018-zwsc-64.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-employment">Conditions of employment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/retrenchment">Retrenchment</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/20">Pension and Providend Fund Act [Chapter 24:09]</a></div></div></div> Mon, 19 Nov 2018 09:27:31 +0000 admin 9156 at https://old.zimlii.org Mafunda v ZERA (SC 9/16, Civil Appeal No. SC 134/15) [2016] ZWSC 9 (04 March 2016); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/9-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                             </p> <p><strong>DISTRIBUTABLE</strong>  <strong>(6)</strong></p> <p>                                                  </p> <p><strong>PETER     MAFUNDA</strong></p> <p><strong>vs</strong></p> <p><strong>ZIMBABWE     ENERGY     REGULATORY     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, OCTOBER 26, 2015 &amp; MARCH 4, 2016</strong></p> <p> </p> <p><em>S. Hashiti</em>, for the Appellant</p> <p><em>E. Matinenga</em>, for the Respondent.</p> <p> </p> <p><strong>UCHENA JA:</strong>           The appellant Peter Mufunda is a Legal Advisor in the Ministry of Energy and Power Development. The respondent Zimbabwe Energy Regulatory Authority is a statutory successor of the Zimbabwe Electricity Regulatory Commission.</p> <p> </p> <p>The common cause facts on which the dispute between the parties arose are as follows. The appellant, an employee of the Ministry of Energy and Power Development was, on 20 October 2009, by appointment assigned to perform duties for the Zimbabwe Electricity Regulatory Commission     (ZERC), whose functions were taken over by The Zimbabwe Energy Regulatory Authority (ZERA).  The appellant played a role in the establishment of ZERA. According to the assigning memorandum he was to play the leading role. ZERA appreciated his role to the extent that when the Ministry sought to withdraw his services to it by memorandum dated 17 November 2011, it asked the Ministry to allow him to continue in that role till it appointed its own Chief Executive officer. The Ministry agreed and extended his assignment to 28 February 2012.</p> <p>After assuming duty at (ZERC) and thereafter (ZERA) the appellant continued to perform his normal duties as Legal Advisor for the Ministry. He did not sign a contract of employment with either ZERC or ZERA, but was paid an allowance of US$500.00 per month after he protested against none payment after serving ZERC for some time. He had demanded that he be paid a salary but the Secretary of the Ministry of Energy after initially telling him rather brutally and uncharitably, to “learn to work for nothing” authorised him to arrange with the respondent that he be paid the US$500.00 per month allowance which the Minister had authorised. The appellant accepted the payments on a without prejudice basis. The parties failed to reach an agreement leading to the appellant referring the dispute over salary and benefits to the Ministry of Labour and Social Services. On 2 September 2013 a certificate of no settlement was issued and the dispute was referred to arbitration. The Arbitrator found that the parties had entered into a valid contractual relationship. He ordered the parties to quantify the award failing which they could revert back to him for quantification.</p> <p> </p> <p>The respondent noted an appeal to the Labour Court which found in its favour leading to the appellant noting this appeal.</p> <p> </p> <p>In his two grounds of appeal the appellant alleged the following against the decision of the Labour Court:</p> <ol> <li>The court <em>a quo</em> erred and misdirected itself in finding that there was no contractual relationship between the appellant and respondent contrary to the dictates of s 14 of the Public Service Regulations SI 1/2000 as read with ss 2 and 12 of the Labour Act (Chapter 28;01).</li> <li>The court further erred and misdirected itself in holding that there was no legal basis for the award of arrear salaries and benefits due to appellant from respondent.<br />   </li> </ol> <p>In finding for the respondent the Labour Court on pages 54 to 55 of the record said:</p> <p>“The Oxford Dictionary defines secondment as a temporary transfer. In other words an employee on secondment remains the employee of the original employer (seconder) during the period of secondment. The Industrial Court of Malaysia in the case of Bank Simpanan Nasional Finance Bhd &amp; anor v Omar Hashim (2002) 1 ILR 272 (Award NO. 1013 of 2005) explained the meaning of the term “secondment” as follows:</p> <p>“The ordinary dictionary meaning of secondment as a temporary transfer has on the face of it the connotation that the employee is subject to recall by his employer. So he is not a permanent employee of the other.”</p> <p>The same court in Come Services Asia Pacific Region, Miri v Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of a temporary transfer stating:</p> <p>“<strong>Therefore so long as the contract is not terminated, a new contract is not made and the employee continues to be in the employment of the original employer. Even if the employer orders the employee to do certain work for another person, the employee still continues to be in his employment.</strong> The only thing that happens in such cases is that the employee carries out the orders of the master hence he has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the period he had hired his services, but that is because of his agreement with his real employer. However, that does not have the effect of transferring the service of the employee to the other employer. The hirer may exercise control and direction in the doing of the thing for which he has hired the employee; or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him and can only complain to the actual employer. The right of dismissal is vested in the employer.</p> <p> </p> <p>I am persuaded that the above quotation aptly describes the Respondent’s position. <strong>In my view the Respondent’s secondment was informal as no fully detailed secondment agreement was put in place as envisaged by s 14 (2) of S.I 1/2000. Consequently the respondent continued to receive his remuneration as a member of the Public Service.</strong> <strong>If the appellant was to pay for respondent’s services, in my view, a detailed agreement would have been put in place.</strong> In the case of <em>Dairibord Zimbabwe Limited v Lazarus Muyambi</em> SC 22/2002 the terms and conditions of the secondment were set out in a contract of assignment entered into by the appellant and the respondent. Such a contract is missing <em>in casu</em>. <strong>I am not persuaded that bit can be implied from the circumstances of this case.” </strong>(emphasis added)</p> <p>The court <em>a quo</em> therefore found that (a) the appellant was not released by his employer, (b) he did not enter into any contract of employment with ZERC nor ZERA, (c) the contract of secondment cannot be inferred from the conduct of the parties and the provisions of ss 2 and 12 of the Labour Act.</p> <p> </p> <p>The issue for determination by this court is whether or not the court <em>a quo</em> correctly summarised the law and applied it to the facts of this case. Mr <em>Hashiti</em> for the appellant submitted that there was a contract of employment between the appellant and respondent. He submitted that the provisions of s 14 of the Public Service Regulations S.I 1/2000 as read with s 12 of the Labour Act [<em>Chapter 28;01</em>], and the conduct of the parties confirms that there was an agreement.</p> <p> </p> <p>Mr <em>Matinenga</em> for the respondent submitted that there is no valid appeal before the court as there is no appeal on a point of Law. He further submitted that if the appeal is valid there was no contract of employment between the appellant and the respondent.</p> <p> </p> <p>Mr <em>Matinenga</em>’s submission that there is no appeal on a point of Law has no merit. The appeal is against the court <em>a quo</em>’s interpretation of s 14 of the Public Service Regulations SI 1/2000 and ss 2 and 12 (2) of the Labour Act. The appellant’s first ground of appeal refers to the court <em>a quo</em>’s failure to properly interpret the dictates of s 14 of the Public Service Regulations as read with ss 2 and 12 of the Labour Act. That clearly raises a point of law.</p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations S.I. 1/2000, provides for the secondment of civil servants as follows;   </p> <p>“(1) A member may at any time with his consent and at the invitation of the Head of the Ministry or Commission, be seconded by the Commission for a period not exceeding three years to a post in an approved service.</p> <p>     (2)The terms and conditions of service of a member while on secondment shall, subject to any policy directive issued by the Commission, be governed by contract between the member and the approved service concerned.”</p> <p> </p> <p> </p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations requires an employee who is seconded to enter into two contracts. The first contract is with his employer who will offer to second him to an approved service provider, which offer he can accept by giving his consent to the secondment. The secondment to be agreed upon should be “to a post in an approved service”.  The second contract is for the employee’s conditions of service which the employee enters into with the approved service provider to which his employer will have released him for secondment.</p> <p> </p> <p>If the agreement between the seconding employer and the employee to be seconded is for the employee to be released and seconded to a post in the approved service provider, then that institution and the employee must enter into an agreement which will govern the seconded employee’s conditions of service. The need for the second agreement depends on the agreement between the seconding employer and his employee. If for example the seconding employer wants his employee to continue working for it but also wants the employee to render services to a specified institution at its expense there will be no need for an agreement between the service provider and the employee. This is what the court <em>a quo</em> attempted to explain in the passage quoted above but unfortunately without fully analysing the provisions of s 14.</p> <p> </p> <p>The court <em>a quo</em>’s decision is correct though it should have adequately analysed s 14 and assessed the facts of this case against it starting from the intention of the seconding employer. The intention of the seconding employer is clearly explained in its memorandum dated 20 October 2009 on page 159 of the record, in which it explained the reason and nature of the secondment in issue. The memorandum reads;</p> <p>“To      Honourable Minister</p> <p>From    Permanent Secretary</p> <p>            Date      20 October 2009</p> <p> </p> <p><strong>Appointment of Ministry Officials To Run The Affairs Of Zimbabwe Electricity Regulatory Commission (ZERC)</strong></p> <p>   As you may recall ZERC was dissolved in order to pave way for the establishment of an all-encompassing Energy Regulatory Commission after the passage of the Energy Act by Parliament of Zimbabwe.</p> <p>   As you may also <strong>recall Eng. M. C Munodawafa was appointed to oversee the operations of ZERC.</strong></p> <p>   Eng M C Munodawafa has since been appointed Chief Executive Officer of the Zambezi River Authority. <strong>Therefore there is need to appoint persons to execute the functions of ZERC until the establishment of the Energy Regulatory Commission.</strong></p> <p>   I recommend that Mr P Mufunda and Mrs G Ngoma, Legal Advisor and Deputy Director for Policy and Planning respectively <strong>be appointed to administer ZERC.</strong> Mr P Mufunda shall take the leading role.”</p> <p> </p> <p> </p> <p>The Minister through a hand written endorsement to the Permanent Secretary’s letter agreed with the appellant’s appointment. He said:</p> <p>“<strong>The Chief Legal Officer may take the proposed role.</strong> While Mrs Ngoma is a good candidate she is a board member of ZESA so please substitute her with another member so that there is no direct conflict in roles” (emphasis added).</p> <p>  </p> <p> </p> <p>                        The Minister’s directive was implemented through a memorandum dated 21 October 2009 through which Mr Hugh Sagonda was appointed in place of Mrs Ngoma.</p> <p> </p> <p>It should be noted from these memoranda that the Ministry appointed its officers to carry out roles at ZERC. It did not second them in terms of s 14 (1) and (2) of SI 1/2000.  It did not second them to posts within ZERC. An appointment to a role by one’s own employer is not a secondment to a post in the service provider. In terms of s 14 (1) the role of the employer is to release the employee for appointment into a specified post by the approved service.</p> <p> </p> <p>The memorandum talks of the appointment of Ministry officials to run the affairs of ZERC. This means the persons being appointed would remain Ministry officials and were to run ZERC’s affairs in that capacity. This is confirmed by reference to M. C. Munodawafa having previously been appointed to oversee the operations of ZERC and the appellant being appointed to administer ZERC. These terms are not consistent with one being seconded in the capacity of an employee of the approved service. If that was the employer’s intention the post to be occupied in the approved service would have been specified. The employees were therefore not released by the Ministry. In the case of a secondment in terms of s 14 the approved service and not the original employer assigns duties to the employee. In this case it is the Ministry which assigned duties to the appellant. When the original employer assigns duties to be performed for the approved service it will not have released the employee. It will be assigning duties to its employee for the benefit of a third party.</p> <p> </p> <p>The determinant facts are that the employer did not release the appellant from his position within it. It did not mention a post to which he was to be appointed within ZERC. It clearly states that Ministry officials were to run the affairs of ZERC. The court <em>a quo</em> was therefore correct that what happened was an informal secondment because a real secondment can only take place when the employer and employee’s agreement is one in which the employer releases the employee to enable him to  go and take up employment in a specified post for a period not exceeding that stipulated in s 14.</p> <p> </p> <p>This explains why the appellant continued to perform duties for the Ministry and receiving his salary from the Public Service Commission.</p> <p> </p> <p>In view of my finding that the employer did not intend to release the appellant to take up a post in (ZERC) or (ZERA), Mr <em>Hashiti</em>’s submissions on the effect of the conduct of the parties and the meaning of ss 2 and 12 of the Labour Act does not warrant consideration. The parties’ conduct and the interpretation of ss 2 and 12 of the Labour Act cannot change the clear intention of the employer to assign the appellant a role as opposed to seconding him. They cannot change the appellant’s agreement with his employer from that of an informal secondment to a secondment in terms of s 14 of SI 1/2000.</p> <p> </p> <p>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement must, therefore, be dismissed.</p> <p> </p> <p>There is however an injustice caused by the Permanent Secretary. He backdated the allowance approved by the Minister to January 2010, when the appellant had been performing duties at ZERC since 20 October 2009. The appellant is entitled to the US$500.00 per month allowance for that period. There is no reason why he should not be paid for that period. The appellant raised this issue in the court <em>a quo</em> and in this Court. The respondent did not give any reasonable explanation for excluding that period from the authorised payment of allowances. The court <em>a quo</em> did not address its mind to this issue. Its decision in this regard must therefore be set aside.</p> <p> </p> <p>Both parties succeeded in part. Each party will therefore bear its own costs.</p> <p>In the result the decision of the court <em>a quo</em> is set aside and is substituted by the following:</p> <p>It is ordered that:</p> <ol> <li>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement between him and the respondent be and is hereby dismissed.</li> <li>The appellant’s appeal against none payment of the US$500.00 per month allowance for the period 20 October to 31 December 2009 succeeds.</li> <li>The respondent is ordered to pay the appellant the US$500.00 per month allowance for the period 20 October 2009 to 31 December 2009.</li> <li>Each party shall bear its own costs</li> </ol> <p><strong>HLATSHWAYO JA</strong>                        I agree</p> <p><strong>MAVANGIRA JA</strong>                I agree</p> <p><em>Messrs Mtombeni Mukwesha &amp; Muzavazi,</em> Appellant’s Legal Practitioners.</p> <p><em>Messrs Kantor &amp; Immerman,</em> Respondents Legal Practitioners.   </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2016/9/2016-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41143">2016-zwsc-9.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2016/9/2016-zwsc-9.pdf" type="application/pdf; length=414968">2016-zwsc-9.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/conditions-employment">Conditions of employment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remuneration">Remuneration</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 28 Mar 2018 14:00:04 +0000 admin 8657 at https://old.zimlii.org