DISTRIBUTABLE (80)

Judgement No. SC 104/04

Civil Appeal No. 67/04

CLARKE ENGINEERING TRANSPORT v REGIS H CHIKOZHO

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA & GWAUNZA JA

HARARE, SEPTEMBER 28 & NOVEMBER 15, 2004

R M Fitches, for the appellant

The respondent in person

GWAUNZA JA: The appellant appeals against a judgment of the Labour Court, in terms of which it was ordered to reinstate the respondent to his former employment without loss of salary and benefits, or in the alternative, pay him damages.

The facts of the matter are not in dispute. On 21 July, 1998, the appellant addressed a letter to the respondent, whose contents were as follows:

“Dear Mr Chikozho

Over the past few months we have noticed that you are incapable of completing your work due to ill health. The company cannot afford to continue employing you in this state, and therefore we wish to place you on early retirement.

The company shall pay you your gratuity, leave pay and your full pay to 31 July 1998.

Thank you for the past 12 years’ service.”

Three people signed the letter at the bottom i.e. the respondent, a Mr Clarke representing the appellant, and a witness.

On 24 July, 1998, the respondent duly received, from the appellant, payment of the benefits outlined in the letter. Subsequently, the appellant filed, with the National Social Security Authority (NSSA) and on behalf of the respondent, a claim for an invalidity pension. The respondent thereafter received treatment from Dr Chagonda and another doctor commissioned by NSSA. Following such treatment Dr Chagonda issued a “Medical Report Certificate.” In the certificate, dated 10 August 1998, the doctor indicated that the respondent was fit for, and capable of continuing with, his work. On this basis, the claim for invalidity pension was rejected.

It would appear that despite this result, the respondent continued to receive treatment from Dr Chagonda until 18 May 1999, when the doctor addressed a letter to the appellant in these terms:

“Ref : Mr Regis Chikozho

This serves to inform your offices that the above named, who has been under my treatment, is now fit and is able to do any duties.”

Although not clear from the record when he did so, the respondent apparently appealed to the Medical Board, which upheld the rejection of his claim. He was informed of this result in a letter from NSSA, dated 29 March 2000. Prior to this, the respondent, who for reasons not clear from the record, had only been informed of the first rejection of his claim a year later on 16 August 1999, had filed an appeal for reinstatement, to the Local Joint Committee. This was on the same date, that is, 16 August, 1999. He stated as follows in his appeal:

“I was stopped job (sic) just because of illness so the doctor and the NSSA doctor told me that I am fit for work so I want to go back to work again as the NSSA doctor and my doctor said.”

The Local Joint Committee, on 19 August 1999, then addressed a letter to the appellant, requesting it to “re-employ” the respondent without loss of wages and benefits. The appellant did not comply with this request, prompting another letter from the Local Joint Committee. In this letter the committee advised the appellant to retrench the respondent if his re-employment was no longer possible. In response to this letter, the appellant’s Managing Director, Mr Clarke, wrote back and stated:

“Thank you for your letter dated 14 September 1999. I would like to inform you that I no longer need to employ Mr R Chikozho, as we have found that we can managed (sic) without him and with the way the economy has gone over the passed (sic) year we can not manage to employ any more people. We have already paid him all his gratuities and leave pay etc., which he excepted (sic).”

The respondent thereafter took his grievance to a Labour Relations Officer, whose determination was to the effect:

(i) that the dispute was not prescribed since the respondent only became “aware” of it after the appellant refused to reinstate him.

(ii) that the parties had signed the letter of 21 July, 1998, on the understanding that the employee was being placed on early retirement, and

(iii) that the termination of respondent’s employment being illegal, the appellant was to re-instate or pay him damages.

This determination was upheld on appeal, first by the Senior Labour Relations Officer and then by the Labour Court.

The court a quo found there was nothing in the letter of 21 July 1998 to indicate that the respondent consented to the termination of his employment. It found instead, that, what the appellant purported to be an agreement was simply a document “in which the appellant was dictating the terms upon which it was unilaterally terminating the contract of employment.”

On p 4 of its judgment, the court a quo also stated, in my view correctly, that;

“The evidence on record also establishes that the termination by mutual agreement contemplated by the parties was subject to respondent qualifying for a medical pension. That condition was never fulfilled because the respondent never qualified for a medical pension. That being the case there was no valid agreement to terminate the contract of employment.”

It appears to me that this matter falls to be determined on whether or not, by signing the letter of 21 July, 1998, the parties mutually agreed to terminate the respondent’s contract of employment on grounds of ill health. The appellant insists they did while the respondent refutes this assertion.

I will consider the wording of the disputed ‘agreement’ and the conduct of the parties subsequent to its signing, in the light of the relevant legal provisions.

It is not disputed that at the material time the respondent’s health was not good, nor that this had adversely affected both his attendance at work and the performance of his duties. This state of affairs prompted the appellant to write to the respondent, stating that it could not “afford” to continue employing him in that state and consequently, that it “wished” to place him on early retirement and pay him his benefits. The letter therefore clearly set out what the appellant’s wishes were. There was nothing in it to suggest that before asking the respondent to affix his signature to it, the appellant had discussed the termination of his employment, for the reason given, with the respondent. Rather, the wording and format of the document suggest that the appellant, having unilaterally decided to terminate the respondent’s contract of employment, drafted the letter in question, and asked the respondent to affix his signature to it. A perusal of the letter shows no wording in it to the effect that the respondent had read, understood and agreed with, the contents of this letter, nor that the benefits promised would be received as and in final settlement of the matter.

Without words to that effect, the affixing of his signature to the letter cannot in my view be taken as a conclusive indication of the respondent’s concurrence with its contents. As contented for the respondent such signing was open to other interpretations. Indeed, it is argued for him that by signing the document, he could, simply, have been acknowledging receipt thereof. The respondent, in any case asserts that while he appreciated that the appellant wished to prematurely terminate his contract of employment, his understanding was that his agreement to such termination was conditional on his being successfully placed on early retirement, on the grounds of ill health. As such an event depended on compliance with certain procedures set out in the relevant statutory instrument, I do not find the respondent’s understanding of the import of the letter to be unreasonable. This is especially so, given that the appellant’s conduct after the signing of the letter tended to fortify rather than discredit such understanding. The appellant promptly and on his behalf, filed a claim with NSSA for the respondent to receive an invalidity pension. It is not in dispute that the granting of such a pension would have effectively terminated the respondent’s contract of employment on the ground of ill health.

The appellant thus chose this option over two others it could have followed to achieve the same result. These options are provided for in clauses 26(9) and 29(10) of the Collective Bargaining Agreement for the Engineering and Iron and Steel Industry, (SI 282/90)

Despite its averments to the contrary, it is evident the appellant did not follow the procedure laid down in clause 26(10), which provides for termination of employment by agreement. The clause reads as follows:-

“(10) Notwithstanding the other provisions of this clause, an employer and an employee may, in conformity with Statutory Instrument 371/1985, by signing a mutual written agreement, terminate the contract of employment without notice or at a reduced period of notice from the relevant period specified in sub-clause 2.” (My emphasis)

“Mutual” in my view suggests a meeting of the mind, or commonality of purpose. I am not satisfied such has been proved in this case.

Clause 26(9) of the same statutory instrument entitles an employer to terminate, on due notice, an employee’s contract of employment where, due to illness, such employee is unable to fulfil the conditions of his contract for a period exceeding that of the regulated sick leave. It is evident, in casu, that the appellant did not follow this procedure.

In the light of this evidence, I find that the appellant has failed to prove, on a balance of probabilities, that the letter of 21 July 1998 constituted a mutual written agreement between it and the respondent to terminate the latter’s contract of employment. What the appellant, in effect, did, was attempt to unilaterally terminate the respondent’s contract, in the hope that NSSA would accept the claim that it (appellant) filed on the respondent’s behalf, for an invalidity pension. The purported termination was therefore unlawful. That being the case, and since NSSA rejected the claim for an invalidity pension for the respondent, the latter effectively remained an employee of the appellant.

Given this finding, the contention of the appellant that the dispute was prescribed is without foundation. As the parties had not mutually agreed to terminate the respondent’s contract of employment, and since such contract had not otherwise been lawfully terminated, it is deemed to have remained effective until the appellant refused to reinstate the respondent following the rejection of the claim filed on his behalf, for an invalidity pension. In this respect, I find no fault in the Labour Court’s finding that it was on or around that date (i.e. 20 September 1999) that prescription began to run. The dispute was therefore referred to the Labour Officer well within the 180 days prescribed in s 94(1)(b) of the Labour Relations Act [Chapter 28:01].

In all circumstances therefore, I am satisfied that the appeal is without merit, and it is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

SANDURA  JA: I agree.

Wintertons, appellant's legal practitioners