Termination of service https://old.zimlii.org/taxonomy/term/10444/all en Tobacco Processors Zimbabwe (Pvt) Ltd v Mutasa & 11 Others (SC 12-21, Civil Appeal No. SC 613/19) [2021] ZWSC 12 (15 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 12/21</p> <p>Civil Appeal No SC 613/19     </p> <p><strong>REPORTABLE  </strong><strong>  (11)</strong></p> <p> </p> <p> </p> <p><strong>TOBACCO     PROCESSORS     ZIMBABWE     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)     TONGOONA     MUTASA      (2)     ROBIN     MATORA     (3)     ALEXIOUS SVINURAI     (4)     TIRANOS     MADZANA     (5)     SLADGE     MUSANHU    (6)     CHAKANYUKA     TSVINA     (7)     TRYNOS     BHUNU     (8)     VERYSON HLOZANI        (9)     ANTONY     MURINGISI     (10)     ELPHAS     UTETE    (11)     WILLARD     MARUFU     (12)     MICHAEL     MUKUNGWA</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAVANGIRA JA, MAKONI JA &amp; CHATUKUTA AJA</strong></p> <p><strong>HARARE:     24 JULY 2020 &amp; 15 MARCH, 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu </em>and<em> T. Nyamagura, </em>for the appellant</p> <p><em>C. Mucheche,</em> for the respondents</p> <p> </p> <p> </p> <p><strong>MAKONI JA:  </strong>This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council- Tobacco Grievance and Disciplinary Committee’s (‘NEC GDC Committee’) finding that the appellant tacitly renewed the respondents’ contracts of employment.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013. After the expiry of  their  contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones. The respondents signed the new contract which effectively regularised their employment in retrospect for the period of <a name="_Hlk48491707" id="_Hlk48491707">1 May 2013 to 30 April 2015.  </a></p> <p>Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then  offered them one-year fixed-term contracts. The proposed contracts  had a two-months probation clause and other less favourable conditions. The respondents rejected the appellant’s offer. The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.</p> <p> </p> <p>Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant’s Works Council. The Works Council upheld the decision by the appellant’s Human Resources department to offer the appellants one-year contracts after the expiry of the two-year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which  had different terms and conditions from the expired contracts. The Work’s Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.</p> <p> </p> <p>Thereafter, the respondents appealed to the NEC GDC Committee. They submitted that in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted,  there was no basis for the new contracts as there had been tacit renewal. They also averred that the alleged negotiations were inconsequential as they ensued after the tacit renewal.</p> <p> </p> <p>In response, the appellant submitted that the NEC <a name="_Hlk49184838" id="_Hlk49184838">GDC </a>Committee had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer  could not be inferred to mean there was tacit renewal. It did not intend to renew the two-year contracts.</p> <p> </p> <p>The NEC GDC ruled in favour of the respondents. It held that tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents’ contracts before their termination and that the respondents were engaged on the same terms and conditions  as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court (the court <em>a</em> <em>quo</em>) on the ground that the NEC GDC grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two-year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts. It argued that where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period. The appellant submitted that tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.</p> <p> </p> <p>To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015  notwithstanding that their contracts expired on 30 April 2015. They also emphasized that the parties did not agree on a new arrangement. The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.</p> <p> </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court dealt with the issue of whether or not the NEC GDC erred in finding that the contracts of employment had been tacitly relocated. In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court <em>a quo</em> found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015. It reasoned that the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.</p> <p> </p> <p>The court <em>a quo</em> also had regard to the precedent that the appellant did not immediately terminate or renew the respondent’s contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts. It reasoned that had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention. The court accordingly concluded that the NEC GDC Committee’s decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.</p> <p> </p> <p>Aggrieved by that decision the appellant noted the present appeal on the following grounds:</p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>“Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered within two months of the expiry of respondent’s contracts, the court <em>a quo</em> erred in finding not withstanding those agreed facts, that the old contracts had been relocated.</li> <li>The court <em>a quo</em> erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the <em>quasi</em> mutual <em>assent</em>.</li> <li>The court <em>a quo</em> erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (<em>sic</em>)</li> <li>Respondents having rejected the terms of the contract offered by appellant, the court <em>a quo</em> erred in concluding that respondents had a contract to enforce.”</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <p>At the hearing, <em>Mr  Mpofu</em>, for the appellant submitted that the court<em> a quo</em> asked itself the wrong question and ultimately gave itself the wrong answer. The wrong question was whether it had been shown that there had been negotiations between the parties from the <a name="_Hlk48412730" id="_Hlk48412730">1 May 2015 to the 22 June 2015 and if not what the effect of the absence of negotiations, during that period, would be.</a> The court<em> a quo’s</em>  <em>ratio</em>  was that upon the expiry of the contract they only engaged in negotiations after a period of six weeks. Because of that silence there was tacit relocation of the contract. He contended that the real dispute between the parties was not that the respondents’ contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts. Mr<em> Mpofu</em> submitted that the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.</p> <p> </p> <p>Mr Mpofu further contended that a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant’s intention. The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts. The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated. To confirm the appellant’s position some of the employees signed the one year contracts.</p> <p> </p> <p>He concluded by saying that tacit relocation can not be inferred from the facts of this matter. On being asked  the date when the negotiations started he was unable to pinpoint a date. He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated. He further submitted that the fact that parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of <em>Justin Kwangwari v Commercial Bank of Zimbabwe</em> HH 79/03. He submitted that there is no period set in our law between the expiry of a fixed term contract and the conclusion of a new one for it to be held that there was tacit relocation. He urged that the court to considers all the facts holistically in order to draw inferences consistent with the proven facts.</p> <p> </p> <p>On being asked what would be the status of the employees in the 7 weeks, before the offer, he submitted that the status was determined by the new contract.</p> <p> </p> <p>Mr<em>  Mucheche</em>, for the respondents, submitted that the facts of the matter point to tacit relocation. He indicated that the root of the dispute lies in the determination of the respondents’ employment status in the 7 week period. Accordingly, he referred to s 12 (1) of the Labour Act [<em>Chapter 28:01</em>]( The Act), for the proposition that the  legislature envisaged the existence of ‘deemed contracts’ in respect of an employee who works for an employer and is receiving or entitled to receive any remuneration notwithstanding that such contract has not been reduced to writing. He also referred s 12 (2) of the Act, which,  so he argues, demands mandatory compliance by the employer to inform the employee in writing the period in terms of which they are engaged and s 12(3)(a) of the Act which provides  that where a contract does not specify its duration or date of termination, it is deemed to be one without a limit of time.</p> <p> </p> <p>As such, he argued, the legislature sought to protect employees from unscrupulous employers who have more bargaining power than the employees. He emphasized that there was tacit relocation in that the respondents reported for work and were remunerated under the old contracts. He further indicated that the respondents’ concerns did not only relate to their disgruntlement with the new offer but also spoke to the issue of tacit relocation. He further submitted that the appellant’s offer of new contracts of employment was immaterial to the concept of tacit relocation. Additionally, he stated that the one-year contracts offered by the appellant were unjust, unfair and violated the respondents’ right to fair and safe labour practices and standards provided for in s 65 of the Constitution of Zimbabwe, 2013.</p> <p> </p> <p>In rebuttal Mr <em>Mpofu </em>submitted that there can be a delay after the expiry of the contract and the delay does not amount to relocation. It would be wrong to say once there is a delay then s12  of the Act is the  answer. He submitted that s12 uses “shall” in a directory sense and not in a peremptory manner. Failure to comply with it does not render conduct void. He concluded by saying that s12 of the Act  is what the employer was complying with in the 7 weeks.</p> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>From a consideration of the grounds of appeal raised and the submissions made, one issue falls for determination which is:</p> <p>Whether or not the court <em>a quo</em> erred in finding that the contracts of employment in question had been  tacitly relocated</p> <p> </p> <p> </p> <p>A reading of the record reflects that the <em>ratio</em> of the court <em>a quo</em>’s ruling was that the respondents’ continued rendering of services from 1 May 2015 to 22 June 2015 in terms of the expired contracts constituted tacit relocation of the contracts by the appellant.</p> <p> </p> <p>That tacit relocation was at the centre of the parties’ dispute is also evidenced in the way the matter progressed before the various <em>fora</em>. This will be shown by a perusal of the minutes of the appeal hearing of 26 October 2015 before the Work’s Council to the respondents’ appeal before the NEC GDC Committee and the subsequent proceedings in the court <em>a quo</em>.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>It is settled law that a fixed-term contract of employment automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. (See <em>ZIMRA v Mudzimuwaona</em> SC 4/18). However, in certain instances, despite the expiry of the period of employment, the employer-employee relationship may be found to exist owing to the parties’ conduct under the concept of tacit relocation.</p> <p> </p> <p>Tacit relocation, as it applies to contracts of employment, entails that where an employee’s fixed-term contract expires without renewal and  the employee continues to render his services to the employer with the employer paying the previously agreed remuneration, the expired contract is deemed to be relocated. Therefore, the employee is deemed to be employed on the same terms and conditions as the previous contract.</p> <p> </p> <p>In <em>Gumbo v Air Zimbabwe (Pvt) Ltd </em>2000 (2) ZLR 126 at 130 A-D the court made the following pertinent remarks regarding the principle of tacit relocation;</p> <p>“Finally, the best that can be said for the applicant is that in certain cases akin to the present there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period without agreeing new terms there is a tacit relocation of the expired contract on the same terms and for the same duration. In other words, all things being equal, it could be said that on 1 October 1999, the applicant commenced a new probationary period. However, this presumption does not operate when it is clear that one of the parties has no intention of continuing on the terms of the expired contract. See <em>Lilford v Black</em> 1943 SR 46 at 47, where BLAKEWAY J said:</p> <p> </p> <p>‘The renewal of a lease or of a contract for services to be performed can take place either by express agreement or tacitly. If, after the expiration of the period provided for the duration of the contract, the parties continue their relationship without any fresh agreement the law presumes, in the absence of indications to the contrary, that they have agreed to enter upon a new lease on the same terms as the expired lease. But this presumption does not operate when it is clear that the parties or one of them does not intend to carry on with the contract on the old terms.”’ (Emphasis added)</p> <p> </p> <p> </p> <p>John Grogan in his book “<em>Workplace Law”</em> 8th ed at pages 41-42 states the following:</p> <p> </p> <p>“If after the agreed date for the termination of the contract the employee remains in service and the employer continues to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that an intention to renew is consistent with the parties’ conduct. <em>The relocated contract will continue on exactly the same terms and conditions as the previous fixed-term contract</em><em>, except that the duration of the contract need not be the same as that of the original contract; the life of the relocated contract must be determined in light of the particular circumstances of each case.” (emphasis added) </em></p> <p> </p> <p>In <a name="_Hlk49160356" id="_Hlk49160356"><em>Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods </em></a><em>CC &amp; Ors </em>2002(1) SA 822(SCA) at 825 D-F the court held:</p> <p>“After the termination of the initial agreement and prior to this letter the parties (in the light of the facts recited) <a name="_Hlk49163254" id="_Hlk49163254">conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.</a> Taken together, those facts establish a tacit relocation of a franchise agreement (comparable to a tacit relocation of a lease) between the appellant and <em>Sirad (Shell South Africa (Pty) Ltd v Bezuidenhout and Others</em> 1978 (3) SA 981 (N) 984B-E). <a name="_Hlk49159960" id="_Hlk49159960">A tacit relocation of an agreement is a new agreement and not a continuation of the old agreement </a>(<em>Fiat S A v Kolbe Motors</em> 1975 (2) SA 129 (O) 139D-E; Shell 985B-C).  The fact that the appellant had forgotten that the agreement had lapsed is beside the point because in determining whether a tacit contract was concluded a court has regard to the external manifestations and not the subjective workings of minds (Fiat S A 138H -139D).” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>The principle that can be drawn from the cited authorities is that an inference of tacit relocation is dependent upon the continued existence of an employer-employee relationship after the expiration of the contract. The employee will continue rendering his services to the employer who in turn pays remuneration in terms of the expired contract. Tacit relocation is based on the intention of the parties which must be consistent with their conduct. The court, in determining such an issue, considers all the facts holistically as it draws inferences which are consistent with the proved facts.</p> <p> </p> <p>The principle of tacit relocation of contracts of employment appears to be embodied in statute, in particular s 12 of the Labour Court Act [<em>Chapter 28:01</em>] which provides:</p> <p>“12 Duration, particulars and termination of employment contract</p> <p>(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.</p> <p>(2) An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars—</p> <p>(a) the name and address of the employer;</p> <p>(b) the period of time, if limited, for which the employee is engaged;</p> <p>(c) the terms of probation, if any;</p> <p>(d) the terms of any employment code;</p> <p>(e) particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;</p> <p>(f) particulars of the benefits receivable in the event of sickness or pregnancy;</p> <p>(g) hours of work;</p> <p>(h)particulars of any bonus or incentive production scheme;</p> <p>(i) particulars of vacation leave and vacation pay;</p> <p>(j) particulars of any other benefits provided under the contract of employment.</p> <p>(3) A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time:</p> <p>Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.</p> <p>(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is—</p> <p>(a) fixed by the appropriate employment council; or</p> <p>(b) prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who are engaged without limit of time.”</p> <p> </p> <p> </p> <p> </p> <p>Section 12(2) has been interpreted to merely impose an obligation on the employer to supply the information and does not require the parties to sign a written contract. See <em>Rumbles v Kwa Bat Marketing (Pty) Ltd</em> (2003) 8 BLLR 811 LC. The statement of particulars is not the contract itself nor is it even conclusive evidence of the contract. See L. Madhuku, <em>Labour Law in Zimbabwe,</em> 2015 at p 31.</p> <p>However, a proper construction of s 12(1) yields the result that where an employee renders services in return for remuneration, a contract of employment exists notwithstanding that such a contract has not been reduced to writing. Tacit relocation is therefore presumed.</p> <p> </p> <p>This is made clearer by the provisions of s 12(3a) which states that a fixed term contract shall be deemed to be a contract without limit of time upon the expiry of such period of continuous service.</p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>A determination of whether a written contract was automatically renewed in accordance with the principle of tacit relocation is a question of fact which has to be answered after an analysis of the particular facts and circumstances of each  case. (See <em>Sun International (South Africa) Ltd v Crocodile Enterprises </em>[2014] ZANWHC 52).</p> <p> </p> <p> </p> <p>In <em>casu</em>, it is not in dispute that the parties’ relationship was governed by a written contract of employment which terminated by effluxion of time on 30 April 2015. As at that date, the respondents would have ceased to be the appellant’s employees. However, the appellant allowed the respondents to continue working on the old terms and conditions of their contracts until 22 June 2015 when it then offered the respondents  one-year contracts with less favourable conditions. It can be reasonably inferred from this conduct of the parties that a new contract had come into existence by the principle of tacit relocation. </p> <p> </p> <p>Applying the <em>dicta</em> in <em>Golden Fried Chicken </em>case, <em>supra</em>, that tacit relocation of an agreement is a new agreement and not a continuation of the old agreement, it follows that a new agreement between the parties came into effect on 1 May 2015 owing to the appellant’s conduct of retaining the respondents in its employ on the same terms and  conditions of the expired contracts. Such a finding would have resolved the matter; however, a secondary issue arises from the parties’ submissions.</p> <p> </p> <p>The issue for consideration is the effect of the alleged negotiations, if any, on the relocated contract. This is necessitated by the appellant's position that the existence of negotiations regarding a new contract negates any finding to the effect that the old contracts were relocated. It is the appellant's position that the engagements between the parties after the expiration of the contract are a clear indication that it had no intention of continuing on the old terms. It relied on  communication by the appellant’s Human Resources Manager dated 7 July 2015 informing the respondents that the negotiations had collapsed, thus a new contract would not materialize and the Work’s Council determination to that effect.</p> <p> </p> <p>Per<em> contra</em>, the respondents aver that negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised. In their written submissions, they aver that the purported negotiations were induced by duress as the appellant’s Human Resources’ Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners. As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment.</p> <p> </p> <p>Since tacit relocation is inferred from the presumed intention of the parties to the contract and their conduct, where it is established that both parties accepted that the old contract had terminated and engaged in negotiations regarding a new contract, tacit relocation will be negated. This is for the reason that neither of the parties would have conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.</p> <p> </p> <p>In this regard, the court <em>a quo</em> made a factual finding that there was no evidence to the effect that there were any negotiations between the parties from 1 May 2015. It further found that although the appellant may have intended to terminate the  contracts, it failed to communicate that intention. It also took into account the manner in which the parties dealt with the same issue in the past. When the initial two year contracts expired the employer did not immediately renew the contracts. It merely allowed the employees to continue rendering services on the same terms and conditions of the expired contracts. It only regularised the contracts after 11 months.</p> <p> </p> <p>It is settled law that an appellate court may only interfere with the decision reached by a lower court based on factual findings where gross misdirection has been established. [See <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S)]. The appellant has not alleged such a gross misdirection which necessitates this court’s interference.</p> <p> </p> <p>More importantly, there is nothing on record to show that the parties engaged in negotiations during the period 1 May 2015 to 22 June 2015 when they were without contracts. There is no evidence that during this period the appellant  communicated to the respondents its intention as to whether or not the two-year contracts would be renewed  or terminated. The first meeting on record occurred in the appellant’s board room on 29 June 2015, notably after the period upon which the respondents base their claim for tacit relocation.   This is followed by the appellant’s letter of 7 July 2015 indicating the collapse of the alleged negotiations. Given this, the court <em>a quo</em>’s finding cannot be assailed. Its decision was based on a correct application of the principle of tacit relocation as enunciated in the <em>Gumbo</em> case, <em>supra</em>.</p> <p> </p> <p>The fact of the matter is that for the two-month period, that is 1 May 2015 to 22 June 2015, the conduct of the parties reflects that they intended to be bound by the expired contracts. Those contracts were therefore tacitly relocated and were to expire after two years, just like the expired contracts. In the circumstances of this case, a mere attempt to negotiate a new contract does not operate to vary an existing binding contract. The appellant’s new offer thus amounted to an attempt to unilaterally vary the respondents’ relocated contracts.</p> <p> </p> <p>This is a classical case of the application of subsections 12(1) and (3a) of the Labour Act which seek to protect employees by estopping an employer from alleging the non-existence of a contract of employment where there has been continued service in terms of an expired contract. Mr <em>Mpofu</em> argued that it would be wrong to invoke s 12 everytime there is a delay in renegotiating an expired contract. He contended that s 12 uses “shall” in a directory sense and not in peremptory terms.</p> <p> </p> <p>It is the generally accepted rule of interpretation that the use of the word “shall” as opposed to “may” is indicative of a peremptory intent on the part of the legislature. Failure to comply with the mandatory dictates of law renders the act done a nullity. However, where the legislature has not explicitly provided that non-compliance is fatal, there is a presumption that the legislature left it to the courts to determine the consequences of non-compliance.</p> <p> </p> <p>In <em>Shumba &amp; Anor v The Zimbabwe Electoral Commission &amp; Anor</em>  SC 11/08 at p 21 the court had occasion to deal with the issue of interpreting a Statute that does not prescribe the consequences of non-compliance with a statutory provision. In interpreting the provisions of the Zimbabwe Electoral Commission Act, CHIDYAUSIKU CJ remarked as follows at pp. 21-23 of the cyclostyled judgment:</p> <p>"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature’s intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature’s intention to make a provision directory.   In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal.   In other instances, the legislature specifically provides that failure to comply is not fatal.   In both of the above instances no difficulty arises.   The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.</p> <p>In the present case, the consequences of failure to comply with the provisions of s 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out. In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.</p> <p> </p> <p>            The learned author Francis Bennion in his work <em>Statutory Interpretation</em> suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines.   He had this to say at pp 21-22:</p> <p>            'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.”</p> <p>           </p> <p>In <em>Sutter v Scheepers</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> the court gave guidelines on how the real intention of legislature can be arrived at. These were summarised in <em>Pio v Franklin NO and Another</em> 1949 (3) SA 442 (C) as follows:</p> <p>“(1)     The word shall when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this construction.</p> <p> (2)      If a provision is couched in a negative form, it is to be regarded as a peremptory rather than a directory mandate.</p> <p>(3)     If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, then the presumption is in favour of an intention to make the provision only directory.</p> <p>(4)      If when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.</p> <p>(5)     The history of the legislation also will afford a clue in some cases.”</p> <p> </p> <p>The principle which comes out of the guidelines is that where strict adherence to the wording of a statute leads to an injustice or even fraud, in instances where no penalty is prescribed, it may be desirable to lean in favour of making the provision directory.</p> <p> </p> <p>From the cited authorities, it is the general position that the use of the word ‘shall’ in a statutory provision requires mandatory compliance. Where the penalty for infraction of the provision is not explicitly stated, it is for the courts to determine what the consequences of failure to comply should be. In doing so, the court must interrogate the purpose of the relevant statute and pronounce a penalty which is proportionate to the mischief the legislature sought to remedy.</p> <p> </p> <p>It is my considered view that both provisions are peremptory owing to the specific use of the word “shall” which has mandatory connotations. Section 12(1) provides:</p> <p>“12 Duration, particulars and termination of employment contract</p> <p>(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”</p> <p> </p> <p> </p> <p> </p> <p>It is accepted that there is no explicit obligation on an employer under this provision to reduce a contract into writing. However, that fact alone does not render the provision directory. The use of the word “shall” after a description of a factual set of facts in an employment set up followed by the pronouncement of a specific outcome is indicative of the fact that the legislature intended the provision to be peremptory. In enacting s 12(1), it appears that the legislature envisaged a situation where services are rendered in return for remuneration but the recipient of the services later disputes the existence of a contract of employment.</p> <p>The peremptory nature of s 12(1) is not dependent on whether or not a particular act is done which in this case would be a mandate on the employer to reduce a contract into writing. The peremptory nature of the provision lies in the deemed existence of a contract of employment which follows the rendering of services and remuneration for such services. Once it is established that services have been rendered and there is a correlative entitlement to remuneration or actual remuneration, a contract is deemed to be in existence. It is <em>prima</em> <em>facie</em> proof of employment.</p> <p> </p> <p>A similar interpretation can be ascribed to s 12 (3).  The peremptory nature of the provision stems from the fact that a contract is deemed to be without limit of time where no specific details of its duration are provided. The same applies to a casual worker who continues rendering services notwithstanding the expiry of the specific period for which he was engaged. Therefore the onus to disprove the continued existence of the contract rests on the party disputing its existence.</p> <p> </p> <p>It is my considered view that the legislature must have been cognisant of the fact that employees are vulnerable under some unscrupulous employers, hence the use of such peremptory provisions in  s 12 of the Act.</p> <p> </p> <p> </p> <p>Having said the above,  the circumstances of this case fall into the ambit of the sentiments of the court in <em>Melamed and Hurwitz v Vorner Investments (Pty) Ltd</em> <a href="http://www.saflii.org/cgi-bin/LawCite?cit=1984%20%283%29%20SA%20155" title="View LawCiteRecord">1984 (3) SA 155</a> (A) at 165B-C: that:</p> <p>“…a court may hold that a tacit contract has been established where, by a process of inference, it concludes that the most plausible probable conclusion from all the relevant proved facts and circumstances is that a contract came into existence …”</p> <p> </p> <p>Applying this approach to the matter at hand, an inference of tacit relocation was justified on the facts of this case. The court <em>a quo</em>’s finding that that respondents’ contracts were tacitly renewed from 1 May 2015 is unassalable. Therefore, the appellant’s termination of the respondent’s contracts of employment in the circumstances was grossly irregular.</p> <p> </p> <p>                        An employer clearly cannot terminate a contract that has expired even though it has been tactly renewed</p> <p> </p> <p>The appeal  therefore lacks merit and ought to be dismissed. Costs will follow the cause.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <p>“The appeal is dismissed with costs.”</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA                            </strong>I agree     </p> <p>  </p> <p><strong>CHATUKUTA AJA                        </strong>I agree</p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Caleb Mucheche &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> (1932 AD 165 at pp. 173, 174)</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/2021/12/2021-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=63066">2021-zwsc-12.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/2021/12/2021-zwsc-12.pdf" type="application/pdf; length=495109">2021-zwsc-12.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/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/termination-employment">Termination of employment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-service">Termination of service</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> Thu, 03 Jun 2021 10:54:36 +0000 Sandra 10019 at https://old.zimlii.org Chibatwa v Zimbabwe Catering and Workers Union & Anor (HH 563-19, HC 550/19) [2019] ZWHHC 563 (22 August 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/563 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>GIFT CHIBATWA</p> <p>versus</p> <p>ZIMBABWE CATERING AND WORKERS’ UNION</p> <p>and</p> <p>ENOCK MAHARI N.O.</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA J</p> <p>HARARE, 14 June 2019 &amp; 22 August 2019</p> <p> </p> <p> </p> <p><strong>Opposed matter</strong></p> <p> </p> <p><em>C.T. Tinarwo</em>, for applicant</p> <p><em>E. Ndlovu</em>, for respondents</p> <p> </p> <p>            MUREMBA J: This is an application for a declaratory order in terms of s 14 of the High Court Act [<em>Chapter 7:06</em>].</p> <p>            The applicant was employed by the first respondent, Zimbabwe Catering and hotel Workers’ Union (the Union) on 1 June 1990 as an Organising Secretary and then as an Education Officer in 1996. On 8 November 2018 he was served with a Notice of Retirement Date which informed him that in terms of the Union’s pension rules and past practice he was due to retire on 21 November 2018 when he was going to attain 60 years of age. However, he was notified that since his retirement date was towards the end of the year, his retirement date had been extended to 31 December 2018. The letter was written by the Acting General Secretary of the Union, Enock Mahari, the second respondent on behalf of the Union. It should be noted that the second respondent was sued in his official capacity. He is cited as Enock Mahari N.O.</p> <p>The applicant protested against the notice of retirement date arguing that he was supposed to retire at age 65 in terms of the law applicable to him. He also challenged the power of the second respondent who is also an appointee just like him to summarily terminate his employment contract without the input of the National Council or National Executive of the first respondent. He registered his protests by way of letter. There was exchange of communication with the second respondent but they failed to resolve the matter. This is what resulted in the applicant filing the present application.</p> <p>            It is the applicant’s averment that he is governed by the National Social Security (Pension and Other Benefits Scheme) Notice 1993, SI 393/1993 (the NSSA Scheme) as amended. On 29 August 1994, s 26 of the NSSA Scheme was repealed by s 8 of the National Social Security (Pension and Other Benefits Scheme) (Amendment Notice, 1994) (No. 1) Statutory Instrument 193A of 1994 which provides:</p> <p>            “Entitlement to pension</p> <ol> <li> </li> <li> </li> <li> </li> </ol> <p>(2) Subject to this section, an employee may retire on attaining the age of sixty years or at any time thereafter but shall in any case retire on attaining the age of sixty five.”</p> <p> </p> <p>The applicant averred that in terms of the NSSA Scheme as amended he had a choice to retire at 60 years or at any time thereafter but it is mandatory that he retires at 65 years. He averred that he was retired by force when he still had 5 more years left.</p> <p>The applicant averred that the respondents purport to base their move to force him to retire at the age of 60 years on the Industrial Agreement: Catering Industry (Pension Fund) SI 359 of 1980 which provides for retirement at the age of 60 years. He averred that this is incorrect and unlawful because he is not employed by the Catering Industry and in any event the position of Education Officer does not fall under Schedule B of the Industrial Agreement: Catering Industry Pension Fund S.I 359 of 1980 which limits membership to the fund to occupations in the Catering Industry as specified therein. He then attached schedule B of SI 359 of 1980 which he said lists the occupations that are covered.</p> <p>The applicant thus seeks a <em>declaratur </em>that the Notice of Retirement Date by the respondents is null and void. The order he seeks is couched as follows:</p> <ul> <li>IT IS HEREBY ORDERED AND DECLARED THAT:</li> </ul> <ul> <li>The Notice of Retirement dated 8 November 2018 is null and void;</li> <li>The Notice of Retirement does not meet the legal prescribed requirements (<em>sic)</em> in the NSSA Scheme which governs the applicant and is hence unlawful; and</li> <li>The applicant and respondents abide by the provisions of the NSSA Scheme in relation to retirement (<em>sic</em>).</li> <li>The legal age of retirement for the applicant is 65 years old in accordance with the National Social Security (Pension and Other Benefits Scheme) Notice, 1993, SI 393 of 1993, as amended;</li> <li>The respondent to pay costs of suit on an attorney client scale.”</li> </ul> <p> </p> <p>Enock Mahari, the second respondent deposed to the respondents’ opposing affidavit. What is noticeable is that he was very rude in the tone of his language but the bottom line of the respondents’ averment is that the applicant is not governed by the NSSA (Pension and Other Benefits) Scheme S.I 393 of 1993 but by the Industrial Agreement: Catering Industry (Pension Fund) S.I. 359 of 1980. The second respondent averred that the applicant was retired properly; it is just that he is in denial. One Felistas Nyamuda the President of the first respondent deposed to a supporting affidavit confirming the contents of the second respondent’s opposing affidavit as accurate.</p> <p>In his answering affidavit the applicant took great exception to the haughtiness exhibited in the respondents’ opposing affidavit by the second respondent who deposed to it. The applicant averred that this is appalling to say the least. I agree with the applicant. As was correctly observed by the applicant, the tone of the affidavit is very rude and punctuated by repetitive use of exclamation marks. I will remark that this is very disrespectful of both the court and the applicant. Such disrespectful and disgraceful conduct should be shunned by any self-respecting person. Legal proceedings are not a platform to ridicule other litigants in as much as you disagree with them. Litigants should therefore learn to tone down their language otherwise the courts will not hesitate to visit them with costs to register their displeasure of such conduct even if the litigant succeeds in the matter. The second respondent should take heed of this warning and desist from such despicable behaviour in future. Legal practitioners are also warned to keep their clients in check. Any reputable legal practitioner should not allow affidavits with awful language to be filed.</p> <p> </p> <p><em>The preliminary point</em></p> <p>The applicant in his answering affidavit raised a point <em>in limine</em> to the effect that there is no competent opposing affidavit by the first respondent. He averred that neither Enock Mahari nor Felistas Nyamuda have authority to depose to an affidavit on behalf of the first respondent. He averred that no Union resolution giving them the requisite authorities was annexed to the affidavits and consequently the opposing and supporting affidavits are fatally defective and ought to be struck out.</p> <p>In response to the preliminary point Mr <em>Ndlovu </em>for the respondents argued that the need to furnish a resolution that bestows authority is not a strict requirement. He submitted that there is a plethora of Zimbabwean cases that deal with that aspect, but he did not cite a single case.</p> <p>Be that as it may, what is apparent is that Enock Mahari in deposing to the opposing affidavit on behalf of both the first and second respondents said,</p> <p>“I Enock Mahari by virtue of my position as Acting General Secretary of 1st respondent do hereby take oath and state the following:”</p> <p>He then went on to make the factual averments. He did not attach the resolution authorizing him to represent the first respondent. As was correctly submitted by Mr <em>Tinarwo</em> for the applicant, s 8 (5) (e) of the Constitution of the Zimbabwe Catering and National Workers’ Union provides that:</p> <p>            “The National Council shall, subject to the provisions of this Constitution, have power to institute or defend legal proceedings by or against the Union or against individual members.”</p> <p> </p> <p>            This means that the second respondent needed to be given authority by the National Council to represent the first respondent. In <em>African Banking Corp of Zimbabwe</em> and <em>Another v PWC Motors (Pvt) Ltd and Ors</em> 2013 (1) ZLR 376 (H) Mathonsi J (as he then was)  held that while there is authority for demanding attachment of resolutions, that form of proof is not necessary in every case as each case must be considered on its own merits. The court is only required to satisfy itself that enough evidence has been placed before it to show that it is indeed the party which is litigating and not an authorised person. He further stated that where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason to disbelieve them unless evidence to the contrary is shown. He stated that where no such evidence is produced, the omission of the company resolution cannot be fatal to the application.</p> <p>            In <em>casu </em>taking a leaf from what Mathonsi J said, I would not say the failure to attach a resolution by the first respondent’s National Council alone is fatal. However, what is fatal is the lack of averment in the opposing affidavit by the second respondent that he has the authority of the National Council to represent the Union in these proceedings. What worsens the situation is that Mr <em>Ndlovu </em>for the respondents made submissions that the National Council which is the Union’s body that gives that resolution only sits once a year in terms of s 9 of the Union’s constitution and that it had not sat this year because of the economic hardships the country is facing. This was a clear admission that the National Council did not give authority to the second respondent to represent it. In view of this, I will uphold the point <em>in limine</em> in respect of the first respondent meaning that there is no opposing affidavit by the first respondent.</p> <p>            As for the second respondent, Mr <em>Tinarwo</em> submitted firstly that, because of an omission of an ‘S” on the Notice of Opposition on page 31 where it is written, “Be pleased to take notice that respondent herein opposes the above matter,” it means that there is an opposition for one respondent only. I find this submission very petty and disgraceful because right below it, it is written,</p> <p>“Mabundu &amp; Ndlovu Law Chambers</p> <p> 1st &amp; 2nd Respondent’s Legal Practitioners”  </p> <p> </p> <p>Clearly this shows that both 1st and 2nd respondents were opposing the matter, never mind that the apostrophe is at the wrong place. As was correctly submitted by Mr <em>Ndlovu, </em>there was an omission of an ‘S’ on the word respondent above. This is buttressed by the opposing affidavit which is on page 32 which reads “1st &amp; 2nd respondent’s opposing affidavit.” Of course it should read 1st &amp; 2nd respondents’ opposing affidavit but any legal practitioner who is worth his salt would not argue over such trivial grammatical errors when it is clear what the intention of the respondents was.</p> <p>            Secondly, it was Mr <em>Tinarwo’s</em> argument that there was no opposing affidavit by the second respondent, Enock Mahari N.O because in deposing to the opposing affidavit Enock Mahari said,</p> <p>“I Enock Mahari, by virtue of my position as Acting General Secretary of 1st respondent do hereby take oath and state the following:”</p> <p> </p> <p>            Mr <em>Tinarwo</em> submitted that the above shows that Enock Mahari did not depose to the opposing affidavit on his own behalf as he did not indicate that in the opposing affidavit. This argument is without merit because the second respondent was sued not in his personal capacity, but in his official capacity as the Acting General Secretary of the first respondent. So when he then says, “by virtue of my position as Acting General Secretary do state the following,” it means that he is deposing to the affidavit in his official capacity being the capacity in which he was sued. There was therefore no need for him to say he was deposing to the affidavit on his own behalf. What he said was sufficient.</p> <p>            For the above reasons, I thus dismiss the point in <em>limine</em> in respect of the second respondent. There is a notice of opposition by the second respondent.</p> <p> </p> <p><em>The Merits</em></p> <p>On the merits, the applicant maintained in his answering affidavit that he is governed by the NSSA Scheme S.I 393 of 1993 and not the Industrial Agreement: Catering Industry (Pensions Fund) S.I 359 of 1980.</p> <p>Mr <em>Tinarwo</em> for the applicant argued that the applicant is not employed by the Catering Industry and neither does the position of Education Officer fall under schedule B of the Industrial agreement: Catering Industry (Pension Fund) S.I 359 of 1980. He submitted that schedule B limits membership of the fund to occupations in the catering Industry as specified therein. Further, Mr <em>Tinarwo</em> argued that in terms of s 10 (2)(e) of the Constitution of the Union an Educational Officer is an appointee of the National Council whose terms and conditions are determined by the National Council. Therefore it is incompetent for the second respondent to purport to assume the duties of the National Council in determining the conditions of employment of the applicant. He further argued that the contract of employment the parties entered into in 1990 is still extant and is due to expire in 2023 and as such the notice to retire issued by the second respondent is unlawful and unprocedural. Mr <em>Tinarwo</em> submitted that the applicant’s contract of employment does not provide that he should retire at age 60. However, the applicant did not attach his contract to this application. Mr <em>Tinarwo</em> further submitted that for a person to be governed by the Industrial Agreement: Catering Industry (Pension Fund) S.I 359 of 1980 they have to be a member thereof of which the applicant was not. It was submitted that apparently the applicant continues to report for duty at the first respondent’s place irrespective of the notice to retire he was served with in November 2018. The applicant continues to render his services even though his employer is not remunerating him. It was submitted that he is doing this because he regards the notice to retire he was served with as a nullity.</p> <p>            Mr <em>Ndlovu</em> submitted that the applicant’s heads of argument are unnecessarily voluminous because they largely address the issue of the <em>declaratur </em>when the second respondent does not even dispute that this is a proper case for the granting of a <em>declaratur</em> should the applicant manage to prove his case on a balance of probabilities. I agree.  Mr <em>Ndlovu</em> submitted that the singular issue for determination is, is the applicant bound by the Industrial Agreement: Catering Industry (Pension Fund) S.I 359 of 1980? I again agree with Mr <em>Ndlovu</em>. It was Mr <em>Ndlovu’s</em> submission that to determine this issue the following three questions have to be answered.</p> <ol> <li>Does S.I. 359 of 1980 define the scope of the industrial agreement? Put differently, who are the members that are bound by the agreement?</li> <li>Is the Zimbabwe Catering and Hotel Workers’ Union an employer in terms of S.I 359 of 1980?</li> <li>Does schedule B of S.I 359 of 1980 absolve the applicant from being an employee in terms of this statutory instrument?</li> </ol> <p> </p> <p>I am in entire agreement with Mr <em>Ndlovu</em>. I now turn to deal with the questions.</p> <p><em>Does S.I. 359 of 1980 define the scope of the industrial agreement? Put differently, who are the members that are bound by the agreement?</em></p> <p> </p> <p>In the preamble of S.I 359 of 1980 there is a heading titled “Agreement” which reads;</p> <p>“In accordance with the provisions of the Industrial Conciliation Act [<em>Chapter 267</em>], made and entered into between the Catering Employers’ Association of Zimbabwe (hereinafter referred to as “the employers” or the “Employers organization”) of the one part and the Zimbabwe Catering and Hotel Workers Union (hereinafter referred to as “the employees” or the “trade Union” of the other part being parties to the National Industrial Council for the Catering Industry.”</p> <p> </p> <p>            What is clear from this provision is that the first respondent, the Union is a party to S.I 359 of 1980. Immediately after the heading “Agreement” is the heading titled “Scope of Agreement” under clause 1 which reads:</p> <p>“The provisions of this agreement shall be observed by all employers falling within the definition of “catering industry” contained in clause 3 of this agreement and by those persons eligible for the fund.”(My underlining for emphasis)</p> <p> </p> <p>All employers defined of in clause 3 are bound by this statutory instrument.</p> <p> </p> <p><em>Is the Zimbabwe Catering and Hotel Workers Union an employer in terms of S.I 359 of 1980?</em></p> <p>That the first respondent is or was the applicant’s employer is not disputed. The critical question now is; is the first respondent, the union an employer envisaged by clause 3 of the Industrial Agreement? The term employer under clause 3 is defined as follows:</p> <p>            “Employer means-</p> <p>(a)        an employer who is engaged in the catering Industry, other  than an employer who is required to hold only a passenger vessel liquor licence;</p> <p>(b)        the Council itself, the catering Employers Association of Zimbabwe and the Zimbabwe Catering and Hotel Workers’ Union or their successors” (my emphasis)</p> <p> </p> <p>Clearly, the Zimbabwe Catering and Hotel Workers’ Union is an employer in the Catering Industry in terms of S.I 359 of 1980 and it being an employer, it is bound by the provisions of the Industrial Agreement as is indicated in clause 1 quoted above.</p> <p> </p> <p><em>Does schedule B of S.I 359 of 1980 absolve the applicant from being an employee in terms of this statutory instrument?</em></p> <p>It was Mr <em>Tinarwo’s</em> argument that the position of Education officer is not listed or does not fall under Schedule B of S.I 359 of 1980 which schedule he said limits membership of the fund to occupations in the Catering Industry as listed in the schedule. Put differently, it was submitted that membership to the fund is limited to the occupations listed in schedule B of S.I 359 of 1980 only. I disagree. As was correctly submitted by Mr <em>Ndlovu</em>, membership is not limited to employees or occupations listed in the schedule. The preamble to that schedule makes that clear. It reads:</p> <p>“Notwithstanding any occupations listed in this Schedule membership of the fund shall be limited to those employees in the catering industry covered by the Industrial Agreement: Catering Industry (General Conditions) (Rhodesia) Government Notice 938 of 1978) as amended or replaced from time to time and voluntary members as defined in that agreement. (My underlining for emphasis).”</p> <p> </p> <p>The provision makes it clear that the occupations listed in this Schedule are not</p> <p>exhaustive. The word “notwithstanding” means inspite of, despite or regardless. This means that there is more to what has been listed. The words “as amended or replaced from time to time” mean that the occupations listed in this Schedule are not restrictive or exhaustive. They are subject to amendment or replacement from time to time. The preamble to Schedule B therefore envisaged amendments or replacements of occupations with the passage of time. Although counsels did not refer to any amendments or replacements that have been made over the years, I would like to believe that there have been some amendments or replacements to the schedule considering that almost 40 years have gone by since the enactment of the statutory instrument.So what matters is not the list of occupations listed in Schedule B but the definition of employer in the definition section of the same statutory instrument and whether or not the Union as an employer is bound by the statutory instrument. I have already dealt with these above. Even though the applicant’s job description is not covered in Schedule B, Clause 3 quoted above makes it crystal clear that the Union is an employer who in terms of clause 1 is bound to observe the provisions of this statutory instrument.Since the Union is bound by Statutory Instrument 359 of 1980 it naturally follows that the applicant is also bound by this statutory instrument as an employee of the Union.</p> <p> </p> <p><em>The major issue for determination</em></p> <p>The answers to the 3 questions above have answered what is the major issue for determination which is: is the applicant bound by Statutory Instrument 359 of 1980? As has been shown above, the answer is a clear yes. The applicant’s argument that he was not making pension contributions to the catering industry pension fund but to the NSSA Scheme only and that as such he is not bound by S.I. 359 of 1980 is without merit as will be demonstrated below. To begin with, he did not furnish his contract of employment which would ordinarily show the terms and conditions of his employment contract. Secondly, he did not furnish his payslip. He was actually challenging the respondents to produce these documents which was quite erroneous because him being the applicant, he had the duty to prove his case on a balance of probabilities by adducing the necessary evidence. A party cannot make an averment and then expect the other party to prove that averment on its behalf. He who alleges must prove. The applicant failed to show that he was contributing to the NSSA Scheme only and not to the Catering Industry Pension Fund as well. In any case, the second respondent in the notice of retirement date he wrote to the applicant on 8 November 2018 he said,</p> <p>“The Union will pay out all statutory obligations such as outstanding leave days and facilitate processing of your pension claims from the Catering Industry Pension Fund and National Social Security Authority.”(My underlining)</p> <p> </p> <p>This shows that the applicant was contributing to both pension funds i.e. the catering</p> <p>industry pension fund and the NSSA Scheme. In any case even if the applicant had shown that he was not contributing to the catering industry pension fund that would not have changed the complexion of his case or that would not have taken his case any further. The reason is as follows. In Zimbabwe there are two types of pension schemes available and these are a State pension scheme and private pensions. The State pension scheme is a compulsory pension scheme created by NSSA in terms of the National Social Security Authority (Pensions and Other Benefits Scheme) Notice, 1993 (SI 393/1993). The scheme applies generally to all employers and employees in Zimbabwe. The scheme applies to every person who is a citizen of or ordinarily resident in Zimbabwe who has attained the age of 16 years but has not attained the age of 65 and is gainfully employed in any profession, trade, occupation, other than persons employed in the service of the State or as domestic workers in private households. All employers and employees are each liable to contribute to the pension fund an amount determined by the Minister of Public Service and Social welfare for every month an employee is employed. The employer is actually obliged to deduct the employee’s contributions from the employee’s earnings and pay them together with the employer’s contribution to the pension fund. So the pension contribution to the NSSA scheme that the applicant was making was not by choice. The law obliged him to do so.</p> <p>            Private pension schemes are voluntary pension schemes that are workplace based that are entered into between employers and employees. They are a matter of contract and they are regulated by the Pension and Provident Funds Act [<em>Chapter</em> 24:09]. The terms of the pension contract may be contained in a collective bargaining agreement.</p> <p>In view of the foregoing even if the applicant had successfully shown that he was only</p> <p>making pension contributions to the NSSA Scheme that would not have made him bound by the retirement provision in the NSSA Scheme SI 393/1993 as amended. This is because the retirement provision in the NSSA Scheme statutory instrument is a default provision which is only applicable in situations where there is no collective bargaining agreement (a written contract) regulating the terms and conditions of employment of employees in a specific profession, trade, occupation or industry. If there is such an agreement, that agreement binds all parties to it including employers and employees who are members of the parties concerned.  This means that in <em>casu</em> the retirement provision in the Industrial Agreement: Catering Industry (Pension Fund) S.I 359 of 1980 takes precedence over the retirement provision in the NSSA Scheme S.I. 393 of 1993. S 2A (3) of the Labour Act [<em>Chapter 28:01</em>] even provides that the Labour Act shall prevail over any other enactment inconsistent with it. This means that the Act and any agreements negotiated in accordance with the provisions of the Act regulating the terms and conditions of employment of employees take precedence over any other enactment. The NSSA retirement provision therefore applies across the board in all trades and professions in situations where there are no collective bargaining agreements or where there are no specific guidelines on the issue of retirement. In <em>casu</em> what it means is that even if the applicant was not contributing to the catering industry pension fund as he says, the law pertaining to his retirement would still be governed by the Industrial Agreement: Catering Industry (Pension Fund) S.I. 359 of 1980 because he was working in the Catering Industry and there is an industrial agreement in place regulating the terms and conditions of employment of employees in that industry.</p> <p>This therefore means that the applicable law for the applicant’s retirement is the one that is provided for in the Industrial Agreement: Catering Industry (Pension Fund) S.I. 359 of 1980. Rule 3 of the Rules of the Catering Industry Pension Fund that are found in Annexure 1 of the statutory instrument provides that;</p> <p>“The normal retirement date for each member will be first day of the month next following his attainment of age sixty.”(My underlining)</p> <p> </p> <p>It is clear that the retirement age for the applicant in terms of S.I 359 of 1980 is 60 years.</p> <p><em>Whether the notice of retirement date given by the second respondent is a nullity</em></p> <p>Retirement being by operation of law, it means that the fact that the applicant was notified of his retirement date by the second respondent is not an issue. The second respondent as the Acting General Secretary was simply complying with the law when he gave notice to the applicant as he is required to do in terms of s 10 (2) (b) of the Union Constitution. Since retirement is by operation of law, the management body of the employer does not need to convene meetings and make resolutions or give directives about an employee’s retirement. In <em>casu </em>there was therefore no need for the National Council, the body vested with the management of the affairs of the Union to convene meetings, make resolutions and give directives about the applicant’s retirement.  The notice which was given by the second respondent suffices and it is therefore not a nullity.</p> <p>It is most unfortunate that the applicant relied on wrong legal advice and continued to go to work after 31 December 2018 which was the date of his retirement. He persevered with the hope that he would win this case and retire at 65 years. He is now in his 8th month of going to work and rendering his services without receiving any remuneration at all. It means that he has been working for nothing for all these months yet he has been looking for money for transport elsewhere to enable him to go to work. It is a pity because he has lost out. All his efforts have yielded to nothing. If he had received correct legal advice he would have channelled his energy elsewhere and earned himself money instead of providing free service to his former employer. Over and above that he has to pay the second respondent’s costs.</p> <p>            In the result, it be and is hereby ordered that:</p> <ol> <li>The application is dismissed.</li> <li>The applicant shall pay the second respondent’s costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Zimudzi &amp; Associates, </em>applicant’s legal practitioners</p> <p><em>Mabundu &amp; Ndlovu Law Chambers</em>, respondent’s legal practitioners</p> <p> </p> <p>           </p> <p> </p> <p>Lovemore Madhuku <em>Labour Law in Zimbabwe,</em> 2015 p 495.</p> <p> Ibid p 495; Munyaradzi Gwisai <em>Labour and Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism </em>at p 404.</p> <p>Munyaradzi Gwisai <em>Labour and Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism </em>at p 404.</p> <p>Lovemore Madhuku <em>Labour Law in Zimbabwe,</em> 2015 p 495.</p> <p>Ibid p 495.</p> <p>Munyaradzi Gwisai <em>Labour and Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism </em>at p 403.</p> <p>Lovemore Madhuku <em>Labour Law in Zimbabwe,</em> 2015 p 499.</p> <p> </p> <p>S 82 (1) of the Labour Act [<em>Chapter</em> 28:01]</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/harare-high-court/2019/563/2019-zwhhc-563.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39268">2019-zwhhc-563.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/harare-high-court/2019/563/2019-zwhhc-563.pdf" type="application/pdf; length=467398">2019-zwhhc-563.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/termination-service">Termination of service</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2013/123">BANCABC v PWC Motors (Pvt) Ltd &amp; Others (HC 5743/2012) [2013] ZWHHC 123 (07 May 2013);</a></div></div></div><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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1976/20">Pension and Providend Fund Act [Chapter 24:09]</a></div></div></div> Wed, 13 Nov 2019 09:26:36 +0000 Sandra 9428 at https://old.zimlii.org