RUTURI v HERITAGE CLOTHING (PVT) LTD
1994 (2) ZLR 374 (S)
Division:
Supreme Court, Harare
Judges:
Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Appeal against decision of Labour Relations Tribunal
Date: 22 November & 1 December 1994
Employment — contract — termination — agreement — Labour Relations (General
Conditions of Employment) (Termination of Employment) Regulations 1985 — s 2(1)(b)
— provision that no employer may terminate contract of employment with an employee
unless he and employee mutually agree in writing — letter from employer telling
employee that his services were terminated and that employee should collect terminal
benefits — not a compliance with s 2(1)(b)
Employment — contract — breach — unlawful termination of contract — remedy —
damages — award of two years’ back pay awarded as “damages” — where damages
awarded, necessary to quantify amount
The respondent company used to employ the appellant. Following a reorganization of the
company, the general manager wrote to the appellant, advising him that it had been
decided to terminate his contract of employment. The appellant was told to leave the
company’s premises and to return to collect his terminal benefits at the end of the month.
He did so but subsequently brought an action in the Labour Relations Board for wrongful
dismissal. The Board held that, by implication or otherwise, he had consented to the
termination of his contract of employment.
On appeal, the Labour Relations Tribunal allowed the appeal, holding that in the
circumstances the acceptance by the appellant of his terminal benefits did not constitute
acceptance to termination of the contract and that in any case there had been no mutual
agreement in writing, as required by s 2(1)(b) of the Labour Relations (General
Conditions of
Page 375 of 1994 (2) ZLR 374 (S)
Employment) (Termination of Employment) Regulations 1985 (SI 371 of 1985). In
considering what remedy to grant, the Tribunal accepted that reinstatement was not
appropriate in this case and held that the appellant could only be compensated by an
award of damages. The award was expressed as an order to compensate the appellant by
an award of salary back payments for two years. When the respondent queried the order,
the Tribunal amended it to convey that damages equivalent to two years’ back pay were
being awarded.
The appellant appealed to the Supreme Court against the Tribunal’s decision not to grant
back pay in addition to damages, while the respondent cross-appealed, challenging (i) on
a variety of grounds, mostly factual, the finding that the employee had not consented to
the termination of the contract; and (ii) the propriety of the award of damages in the
absence of evidence.
Held, that an appeal from the Tribunal could only be on questions of law and that there
were only two questions of law before the court: (i) whether the letter written by the
respondent to the appellant complied with the provisions of s 2(1)(b) of the Regulations;
and (ii) whether the decision to award damages, unsupported by evidence, was a decision
no reasonable tribunal could arrive at.
Held, further, that the general rule is that if the law requires an agreement to be in
writing, it implies that the writing is to bear the signatures of both parties. There was no
warrant to construe s 2(1)(b) any differently from the general rule. The use of the word
“mutually” underlined the requirement that the assent of the parties to the termination of
the contract must appear ex facie the document. The letter from the respondent to the
appellant fell far short of complying with s 2(1)(b). Consequently, the Tribunal’s decision
in this respect was correct.
Held, further, that no evidence was led as far as the award of damages was concerned.
While it would have been entirely within the Tribunal’s discretion to award damages only
and not make an award of back pay as well, it was necessary for the Tribunal to hear
evidence in order to assess the damages. It was not proper for it to relate the damages to
two years’ back pay without even specifying the amount. The award would be set aside
and the matter remitted to the Tribunal to determine the issue of damages in the light of
any evidence the parties were disposed to adduce be
PICHANICK NO v PATERSON
1993 (2) ZLR 163 (H)
Division:
High Court, Harare
Judges:
Smith J
Subject Area: Application for leave to appeal
Date: 20 June & 15 September 1993
Employment — contract — breach — remedies — specific performance — employer
terminating services of an employee — when reinstatement should be ordered rather than
damages
Appeal — interlocutory order — what constitutes — referring of matter to trial — leave
to appeal — when should be granted
The respondent, a legal practitioner, was employed as a professional assistant by the firm
of which the applicant was the senior partner. Differences arose between them which
resulted in the firm suspending her without pay and making an application to the Ministry
of Labour for her dismissal. She applied for and was granted (by Adam J) a provisional
order that she should continue to receive her salary and other benefits. Some months
later, Smith J issued an order referring the questions of the validity of her suspension and
dismissal and of her reinstatement to trial and continuing in effect the order that she
continue to receive her salary.
The applicant applied for leave to appeal against that part of the order which was
interlocutory in nature, such leave being necessary in terms of s 43(2)(d) of the High
Court Act 29 of 1981. He argued that reinstatement was inappropriate due to the
breakdown in the relationship between the parties. She had also shown wilful
disobedience sufficient to justify her suspension without pay and dismissal. He noted an
appeal against that part of the part of the order requiring the firm to continue to pay the
respondent, on the basis that that part of the order was not interlocutory in nature.
Page 164 of 1993 (2) ZLR 163 (H)
The respondent opposed the application on the ground that reinstatement would be a
possible remedy and it was therefore appropriate to refer the matter to trial. She claimed
that her alleged disobedience did not justify her suspension and that it was just and
equitable that she should continue to receive her salary.
Held, that the order referring the matter to trial was an interlocutory order and leave to
appeal against it was required.
Held, further, that leave to appeal should be granted where there is a reasonable prospect
of success, the amount in dispute is not trifling and the matter is of substantial importance
to one or both of the parties. The court must also consider the balance of convenience, as
between an immediate appeal on the interlocutory matter and the immediate prosecution
of the action.
Held, further, that in view of the authorities on the question of whether and when
reinstatement should be ordered, which were generally though not conclusively against
ordering reinstatement, it was quite possible that the Supreme Court would hold that the
respondent’s remedy lay in a claim for damages.
Held, further, that the amount in dispute was not trifling and the matter was of substantial
importance to both parties.
Held, further, that the facts on which the applicant had lodged an appeal were
inextricably interwoven with those relating to the question of the suitability of an order of
specific performance. It would save a great deal of time and money for that aspect to be
settled now rather than wait for the trial and then proceeding on appeal. The balance of
convenience would thus favour the granting of leave to appeal.fore it.