DISTRIBUTABLE   (75)

Judgment No SC 95/04

Civil Appeal No 3/03

FARM-A-RAMA    (PRIVATE)    LIMITED      v      ALEC    ARAMU

SUPREME COURT OF ZIMBABWE

SANDURA  JA,  MALABA  JA  &  GWAUNZA  JA

HARARE  OCTOBER 14,  2004

H. Zhou, for the appellant

The respondent in person

                        SANDURA  JA:     This is an appeal against a judgment of the Labour Relations Tribunal (“the Tribunal”) (now the Labour Court), which ordered the appellant company (“the company”) to reinstate the respondent (“Alec”) as its employee with no loss of salary and benefits, or pay him damages in lieu of reinstatement.

                        At the hearing of the appeal Mr Zhou, who appeared for the company, informed this Court that he did not have any meaningful submissions to make in support of the company’s sole ground of appeal, which was that:

“The Tribunal erred in law in failing to find that the letter of 4 February 1999 with (a) cheque enclosed for $8 281.20, accepted by the respondent was tantamount to a termination of (the) respondent’s employment with (the) appellant.”

                        The attitude adopted by counsel was the most logical one in the circumstances as the appeal was devoid of merit.   We accordingly dismissed the appeal with costs and indicated that the reasons for that decision would be given in due course.   I now set them out.

                        In brief, the background facts are as follows.   At the relevant time Alec was an employee of the company and was arrested by the police because the company suspected that he had aided and abetted another employee of the company in stealing the property of the company.   However, it would appear that Alec was later tried and was found not guilty of the charge and was acquitted.

                        Nevertheless, the company dismissed him without following the procedure set out in the relevant Code of Conduct (“the Code”).   Aggrieved by that decision, Alec approached the Commercial Workers Union of Zimbabwe (“the C.W.U.Z.”).

                        On 21 January 1999, the C.W.U.Z. wrote to the company on behalf of Alec and two other employees of the company.   The relevant part of that letter reads as follows:

“The code of conduct procedures for the commercial sectors were not followed …   As a result … the affected employees are still under employment until the legal requirements are completed.   Therefore, in the absence of the proper procedural documentation, the three employees are to be paid as follows:

1. MR ALEC ARAMU

November 1998 Wages                                               $1 400.00

Annual Bonus …                                                        $1 400.00

Cost of living adjustments                                          $  280.00

Cash in Lieu of leave, 1.5 days                                   $   96.92

December 1998 : Wages 11 days

X $64.62                                                                     $ 710.82

Payment of Balance as per 26.03.97

NEC determination                                                     $4 393.46

Total Claim                                                                 $8 281.20

...”

                        Subsequently, Mr R.M. Mufuka (“Mufuka”), the company’s lawyer, wrote to the C.W.U.Z. on 4 February 1999 as follows:

“We enclose herewith our cheques in favour of:

1. Alec Aramu the sum of $8 281.20;  and

1. Wilson Kambanje the sum of $17 476.93;

in full and final settlement of their employment with Farm-a-Rama.

Do acknowledge receipt of these monies.”

                        When the C.W.U.Z. acknowledged receipt of the two cheques it wrote to Mufuka on 4 February 1999, as follows:

“This memo serves to inform you that cheque number 000969 amounting (to) $8 281 made payable to Mr Alec Aramu and cheque No. 000970 amounting to $17 476.93 made payable to Mr Wilson Kambanje, as settlement payments as claimed by Messrs A. Aramu and Wilson Kambanje for unpaid wages and benefits have been received on the 4th of February 1999.”

The two employees hereby put down their signatures without pressure or duress from anyone in Agreement to receiving the cheques.”   (emphasis added)

                        Thereafter, on 18 May 1999 Alec appealed against his dismissal by the company.   That appeal was heard by the Local Joint Committee (Mashonaland) (“the committee”) of the National Employment Council for the Commercial Sectors of Zimbabwe (“the N.E.C.C.S.Z”) on 17 November 1999.   The company’s contention before the committee was that Alec had received the cheque for $8 281.20 in full and final settlement of all his claims against the company and that he could not, therefore, claim reinstatement.   On the other hand, Alec contended that the sum of $8 281.20 represented unpaid wages and benefits due to him.

                        The committee reached a deadlock and could not determine the matter.

                        The matter then came before the Masvingo Local Joint Committee of the N.E.C.C.S.Z. which determined that in dismissing Alec the company had not followed the procedure set out in the Code, and that the payment of the sum of $8 281.20 had not been in full and final settlement of all claims by Alec against the company, but had been in respect of unpaid wages and benefits due to him.   It therefore ordered the company to reinstate Alec without loss of salary and benefits.

                        The company then appealed to the negotiating committee of the N.E.C.C.S.Z. which dismissed the appeal.   A further appeal to the Tribunal was also dismissed.

                        Aggrieved by that result, the company appealed to this Court.

                        The sole question for determination by this Court was whether the payment of the sum of $8 281.20 to Alec had been made and received in full and final settlement of all claims by Alec against the company.   In my view, it was quite clear from the evidence that the answer to that question was in the negative.   I say so for two main reasons.

                        Firstly, in its letter to the company dated 21 January 1999 the C.W.U.Z. indicated how the sum of $8 281.20 claimed on behalf of Alec was made up.   There was nothing in that letter which indicated that the sum claimed had anything to do with the alleged mutual agreement to terminate the contract of employment.   On the contrary, the letter made it quite clear that Alec was still an employee of the company and that the payment claimed was in respect of unpaid wages and benefits due to him.

                        And secondly, in its memorandum to Mufuka dated 4 February 1999 the C.W.U.Z. made it quite clear that the cheque for $8 281.20 had been received in respect of unpaid wages and benefits due to Alec.   Had the cheque been received in full and final settlement of all claims by Alec against the company that fact would have been stated in the memorandum.

                        In the circumstances, this Court was satisfied that the Tribunal had correctly determined the matter, and dismissed the appeal with costs.

                        MALABA  JA:   I agree

                        GWAUNZA  JA:   I agree

Wintertons, appellant's legal practitioners