Judgment No. SC 16/05
Appeal No. 90/04
B. S. LEON TRUST v LETWINA MADZIVANYIKA
COURT OF ZIMBABWE
JA, ZIYAMBI JA & MALABA JA
FEBRUARY 24 & JUNE 13, 2005
C Paul, for the
Respondent in person
ZIYAMBI JA: This is an appeal
from a judgment of the Labour Relations Tribunal (now the Labour
Court), hereinafter referred to as
the Tribunal, ordering the
appellant to pay to the respondent damages in lieu of reinstatement
as well as damages to cover
future earnings. The facts forming the
background of this appeal are as follows:
The appellant, on 24 July 1997,
made an application to the Minister in terms of s 3(d) of the Labour
Relations (General Conditions
of Employment) (Termination of
Employment) Regulations, 1985, S.I. 371/85, for authority to dismiss
the respondent on grounds of
insubordination. The letter reads in
sister-in-charge of the hospital reported, together with the Junior
Sister, to the Matrons office on the morning of Monday
that the senior staff could no longer tolerate Mrs Madzivanyikas
destructive behaviour to the smooth running of the Hospital.
reported by the Sister-in-Charge that she is extremely insolent, both
verbally and non-verbally, either ignoring the Sisters
instructions by remaining silent or answering the Sister back. She
displays complete insubordination to senior staff right across
called to the Matrons office to explain her behaviour to the three
Matrons present she further displayed insolence, was extremely
both verbally and by demeanour, and answered all three back. She
displayed no sense of dignity and respect to her peers what-so-ever.
The Chairman of the Executive Committee was called into the office
and after discussions with the Matrons he suggested she be suspended
with a request to your offices that we dismiss her from our staff.
Madzivanyika has been displaying a severe attitude problem to senior
staff ever since the commencement of her employment with
the B S Leon
Trust. As far back as 1988 the Executive Committee warned her in a
letter that they had received adverse reports from
the Matron on the
standard of her work and that she was uncooperative and unwilling to
carry out the duties allotted to her. This
has not changed to date.
B S Leon is run efficiently by Professional people who are dedicated
to their work and to the smooth running of the Home. Mrs
Madzivanyika has shown no interest throughout her employment in
participating in the team work required in running a hospital, indeed
her attitude to her work has been most disruptive.
therefore, in view of the foregoing, formally request that we may
dismiss Mrs Madzivanyika with immediate effect.
On the day of the hearing, 11
December 1997, the respondent was in default despite having been
duly notified of the hearing date.
The Labour Relations Officer,
Nyazika, conducted a hearing and, after considering the merits of the
application, granted authority
to the appellant to dismiss the
respondent. There was no appeal against this order. However on 5
February 1998, the appellant
received a further notification to
appear before the Labour Relations Officer on 7 April 1998 for a
further hearing of the matter.
This notice, signed by A.G. Nyazika,
have decided to set the matter down again to ensure that Letwina is
present - she says that she did not get the first date right
alleges she was disadvantaged.
Needless to say, the Labour
Relations Officer was functus
officio and had no
jurisdiction to set aside his own judgment and entertain the matter
afresh. However, despite protestations by the appellant
effect, the appellant received, on 10 July 1998, a determination
ordering the appellant to pay to Letwina the sum of
wages and terminal benefits
within two weeks of receipt of the
determination. The date of the determination
Nyazika had reversed his previous decision.
Before an appeal could be lodged
by the appellant, as it intended to do, it received notification of
an appeal to the Senior Labour
Relations Officer by Letwina dated 20
July, 1998. Her grounds of appeal were that the notification given
to her of the initial
hearing date before Nyazika, cited 14 December
a Sunday, as the date of hearing.
The appeal was heard on 13
October 1998, by Mrs Mombeirere (Mombeirere), a Senior Labour
Relations Officer. The respondent admitted
at that hearing that she
had had proper notice of the initial hearing which took place on 11
Notwithstanding the above
admission, the appellant received a letter from Mombeirere stating
that Nyazika did not abide by the principles
of natural justice in
that he did not afford the appellant time to be heard and that
accordingly the matter was being reopened.
objections made by the appellant in a letter dated 30 November 1998,
namely, that there was no violation of the principles of
justice since the respondent was given the opportunity to attend the
hearing and ignored it, were ignored and the matter
was referred by
Mombeirere to another Labour Relations Officer, Ganyani, purportedly
in terms of s 95 (1)(b) of the Labour Relations
Act [Chapter 28:01]
(now the Labour Act).
Ganyani held a hearing on 7 July
1999 and found that whilst the respondent may have been generally
rude and had habitually
refused to take instructions from her
superiors, however B. S. Leon Trust did not dismiss her
procedurally thereby violating
the provisions of s 3 of SI 371/85.
The employer did not seek ministerial approval in terminating
Of course this finding was wrong
for, as I have recounted above, the appellant sought, and obtained,
the necessary approval for dismissing
the respondent. Nevertheless,
Ganyani ordered the appellant to pay $14 400 to the respondent by way
The respondent was, strangely
enough, not content with the determination. She applied on 20 July
1999 for reference of the matter
to a Senior Labour Relations
officer. The grounds of this application were:-
was not given a chance to be heard and my side of the story was not
The matter was referred back to
Mombeirere who, on 29 September 1999, made a determination in favour
of the respondent without, apparently,
dealing with the merits of the
application. The appellant was ordered to pay to the respondent $23
472,00 as damages equivalent
to two years salary. This
order was arbitrary as there was no evidence led and therefore no
basis for it.
Aggrieved by this determination,
the appellant appealed to the Tribunal. The respondent also cross
appealed praying for payment
of her terminal benefits and any
other money due to her as a result of her long service with the
The Tribunal wrongly concluded
that the respondent had been dismissed without a hearing and upheld
the respondents cross appeal.
It awarded her damages equal to the
salary she would have earned had she remained in employment with the
appellant until her 60th
birthday when she was due to retire. In doing so, the Tribunal
ignored the respondents evidence that she had worked since her
dismissal and would in all probability have continued to earn an
Not only did the Tribunal
misdirect itself in failing to take into account that the appellant
had applied for ministerial approval
and that the respondent was
dismissed after a hearing by the Labour Relations Officer, Nyazika,
but the award which it proceeded
to make was arbitrary and
unreasonable without any regard to the legal principles applicable in
the awarding of damages for wrongful
dismissal as to which, see Clan
Transport Company (Private) Limited v
Clan Transport Workers
Committee SC 1/02;
Services (Private) Limited v Leonard
1997 (1) ZLR 583(S); Ambali
v Bata Shoe Company Limited
1999 (1) ZLR 417 (S).
view of the numerous misdirections and incompetent orders set out
above the appeal can only succeed.
the appeal is allowed with costs and the determination of the
Tribunal is set aside and substituted by the following:
appeal is allowed.
dismissal of the respondent by the appellant is confirmed.
respondents cross appeal is dismissed.
SANDURA JA: I
JA: I agree.
appellant's legal practitioners