MUNHUMUTEMA v TAPAMBWA & ORS 2010 (2) ZLR 509 (H)

Flynote

Court - contempt - what constitutes - failure to comply with court order - need for court order to be one that creates an enforceable obligation

Employment-wrongful dismissal - order for reinstatement - effect-court not entitled to create new contract of employment - order for reinstatement made after normal date for employee's retirement - no new contract created - employer obliged to pay only up to retirement date

Headnote

The applicant was dismissed from his employment by the third respondent bank in 1995. In June 1999 he had passed the date on which he would have been due to retire. The applicant appealed against the decision. In December 1999, the Employment Council for the Banking Undertaking, sitting as an Appeals Board, resolved that an incorrect code of conduct had been used. It allowed the appeal and ordered that the applicant be reinstated with full pay and benefits from the date of his initial discharge to the date that the hearing in terms of the correct code of conduct took place. The bank lodged an appeal to the then Labour Relations Tribunal. On 6 March 2003 the Tribunal dismissed the appeal and upheld the Employment Council's decision of reinstatement.

The applicant having passed his retirement date by then, all that he was owed by the bank by way of back pay was calculated and tendered to him, together with an ex gratia lump sum payment, but the applicant rejected the tender. Thereafter, the bank approached the Labour Court to quantify the amount payable to the applicant. This was after the parties had in vain attempted to settle out of court. In 2007 the Labour Court ruled that the bank was barred from approaching the court until after purging its contempt of not complying with its earlier judgment upholding the Employment Council's decision of reinstatement. The applicant approached the Labour Court for a contempt order against the respondents and, when that court ruled that it had no jurisdiction, approached the High Court. The respondents argued that the order of the Labour Court was not one which could rise to contempt proceedings and that the ruling of the Tribunal had been complied with.

Held, that contempt of court is a generic term descriptive conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it in order to resolve their disputes. Civil contempt involves disobedience by a party to a specific order of the court made against him in the action. It is punishable because the administration of justice would be undermined if court orders could be disregarded with impunity. But where a court order imposes no enforceable obligation, a party disobeying such an order is not in contempt.

Held, that upon reinstatement the ordinary contractual relationship between employer and employee resumes: the status quo ante dismissal is restored and the relationship should continue with all the rights and obligations under the contract of employment until such time as the contract is terminated on lawful grounds. The contract of employment between the parties was to run until the applicant attained the age of 60 years (his retirement age) in June 1999. It could only be extended if both parties agreed, which was not the situation here. What the bank did, by calculating all salaries with corresponding increments together with interest that were owed to the applicant and tendering the same to him, effectively amounted to reinstatement. The orders of the Appeals Board and of the Labour Relations Tribunal were made well after the applicant's retirement date provided for in the contractual relationship between the two parties. They could create no rights for the applicant outside the normal contract of employment between the parties, for to do otherwise would entail creating a new agreement for the parties. This no court is legally competent to do.