Court grants Chinese company chance to defend a US$14k claim, reinstatement of employee

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By Staff Reporter

A company contracted by a top Lithium Miner Prospect Lithium Zimbabwe, Richmark Zimbabwe has secured a reprieve to defend itself in a labour dispute with its former employee Deseree Derby Muzamba who is suing it for unfair dismissal.

Labour Court judge, Justice Bridget Chivizhe upheld an application by the company, which was seeking condonation for the late filing of an appeal against the determination of the Designated Agent of the National Employment Council for the Mining Industry whose determination was handed down on the 18th of May 2023.

The agent ruled in favour of the former employee ordering his immediate reinstatement.

Muzamba was employed by Richmark as a Production Clerk/Statistician from 11 September 2022. His contract was terminated on 2 April 2023.

He lodged a claim of Unfair Dismissal with the NEC Designated Agent for the Mining Industry on 4 April 2023.

A hearing was convened on 27 April 2023 at which both parties were represented.

Muzamba’s submissions through Counsel were that thereafter the parties were requested to file written submissions.

He filed his written submissions.

Richmark did not file such written submissions.

The Designated Agent then issued a determination on the 18th of May, 2023  ruling upholding Muzamba’s claim for unfair dismissal.

It was also ordered that Richmark reinstates Muzamba to his former position with effect from the date of unfair dismissal without loss of salary and benefits or alternatively, if reinstatement is no longer tenable, the company was to pay him US$14 663.06 being damages in lieu of reinstatement, gratuity and cash in lieu of reinstatement.

Richmark responded nine months later.

In its application for condonation for late filing, the company submitted that the determination was not received at the given address.

The company also said it was also received by some Chinese officers who do not understand English. They then stuck the document somewhere.

Richmark also agrees that some of its officers in Human Resources are Zimbabwean but were not present at the time when the determination was received.

The company also said the Designated Agent erred grossly when handing down an award that sounds in United States dollars without the option of payment in local currency in violation of the exchange regulations currently in force particularly s (7) of the Exchange Control [Exclusive use of Zimbabwe Dollars for Domestic Transactions] Amendment Regulations, SI 185/2020.

“The Designated Agent erred grossly when awarding damages in lieu of reinstatement without hearing evidence from the parties on quantification of damages,” the company submitted.

It contends that it only became aware of the determination that Muzamba approached the Magistrates Court to issue a summons in a bid to execute the determination by the Designated Agent.

In counter, Muzamba said Richmark was indeed aware of the determination and its binding effect.

He said his former employer did not seek to challenge the determination, only opting to do so when the matter had escalated to the execution process.

Muzamba urged the court to dismiss the contention that Richmark officials were Chinese and did not understand and speak English.

He argued that a perusal of the record of proceedings by the court would show that the company was represented at the hearing before the Designated Agent by officers in its Human Resources who are Zimbabwean and therefore speak and clearly understand English.

The court ruled in favour of Richmark noting that the company should be allowed to defend itself.

“In conducting default proceedings the court/tribunal is still required to receive evidence from the claimant in support of every claim made.

“It is for this reason I believe that the Applicant has again raised an arguable point through the intended second ground of appeal. In view of this position, the intended appeal has reasonable prospects of success.

“On this basis, the application for condonation clearly must be allowed,” ruled the judge.