CFI RETAIL (PVT) LTD v MANYIKA

SUPREME COURT, HARARE

[Labour Appeal SC 08-16]

July 6, 2015

MALABA DCJ, ZIYAMBI AND GOWORA JJA

Practice and procedure  – “Dirty hands principle”  –  When applicable.

Employment  –  Arbitral award  –  Appeal from  –  Non-compliance with award pending appeal  – “Dirty hands doctrine”  – Whether applicable.

Words and phrases  – “Dirty hands principle”  –  Meaning of.

Section 92E (3) of the Labour Act [Chapter 28:01] provides that an appeal in terms of the Act does not suspend the decision appealed against. The Labour Court had dismissed an appeal against an arbitration award on the basis that the appellant had not complied with the arbitration award.

Held, that the “dirty hands principle” applies to a situation where a party is under a direct obligation imposed by law to act in a specific manner which obligation the party deliberately refuses to perform.

Held, further, that on appeal to the Supreme Court, s 92E (3) of the Labour Act does not impose an obligation on the appellant to comply with the determination or decision appealed against, but merely allows the enforcement of an award or determination notwithstanding the noting of an appeal.

Cases cited:

Marimo & Anor v Minister of Justice & Ors 2006 (2) ZLR 48 (S), referred to

Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLC & Ors 2010 (1) ZLR 34 (S), applied

Legislation considered:

Labour Act [Chapter 28:01], ss 92E, 92E (2), (3), 98 (14)

AK Muguchu, for the appellant

No appearance for the respondent

MALABA DCJ:

After hearing counsel for the appellant, the appeal was allowed with costs and the order of the court a quo set aside. The matter was remitted to the court a quo for it to be determined on the merits. It was indicated that reasons for the decision would follow in due course. These are they:

The respondent was employed by the appellant as an empty bottles clerk until August 2009 when he was retired after having attained the retirement age of 60 years in January 2009. Mr Manyika had originally been an employee of the then Farmers Co-op. He had joined the Farmers Co-op Pension Fund in 1982. Under that Pension Fund’s regulations, the date of retirement was said to be January 2014. In 1995 there were changes in the company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the passage of time. Under the CFI Pension Fund regulations the age of retirement was lowered to 60 years and all the employees were informed of the change through their subsidiaries. The information was also communicated to the employees through their pay slips. The same information was also placed on the notice boards which were accessible to all employees.

The respondent was still of the belief that his retirement age was 65 years which would have been reached on 30 January 2014. According to the new pension regulations, the respondent should have been retired from work in January 2009. He was however retired in August 2009. The appellant admitted that there was an oversight on their part as there had been changes in the human resources department. Mr Manyika unsuccessfully pleaded with the appellant to remain at work until January 2014. Mr Manyika was aggrieved by the decision of the appellant and approached a labour officer complaining of unfair labour practice. The dispute was referred to compulsory arbitration.

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