A BURSAR fired from the University of Zimbabwe after he refused to authorise transactions that were in contravention of the provisions of the Public Procurement and Disposal of Public Assets Act has been awarded damages amounting to US$323 046.
Vengai Mugabe brought to the attention of authorities the fact that all procurements whose value exceeded US$20 000 must be subject to a bid.
He challenged his dismissal with the Supreme Court awarding him US$323 046 for unfair dismissal.
The UZ had appealed a Labour Court judgment that awarded Mugabe US$323 046 but the matter was dismissed for lack of merit.
In its application, UZ had cited Jealous Zhakata, labour officer and Mugabe as respondents.
The Supreme Court bench of Justices Antonia Guvava, Tendai Uchena and Hlekani Mwayera heard the application.
The Supreme Court bench confirmed a draft ruling made by Zhakata of October 2, 2022, in favour of Mugabe and after hearing the appeal, they dismissed it with costs.
Mugabe was employed as bursar on a fixed-term contract on July 1, 2017, which contract was due to expire on June 30, 2021.
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The court heard that on June 5, 2018, Mugabe wrote a memorandum to the UZ vice-chancellor raising concerns about procurement transactions which he had instructed him to authorise for payment in his capacity as the bursar.
Mugabe informed the vice-chancellor that the transactions were against the provisions of the Public Procurement and Disposal of Public Assets Act.
In the memorandum, Mugabe brought to the vice-chancellor’s attention that all procurements whose value is more than US$20 000 must be subject to a bid, but the latter did not respond.
On June 14, 2018, following pressure to authorise the payments, Mugabe again wrote to the vice-chancellor insisting on his earlier position.
He informed the vice-chancellor that if his continued refusal to approve the transactions was going to be a stumbling block to the progress of the university, he was prepared to resign and was requesting a round table to discuss his immediate exit from the university.
Mugabe indicated that if the parties agreed to his exit, they could determine a mutually-agreeable package.
On June 19, 2018, the vice-chancellor informed Mugabe that he had accepted his immediate resignation.
Mugabe was informed that he had breached his contract of employment by not giving the mandatory three months’ notice and was, therefore, required to pay the UZ an equivalent of three months salary.
The vice-chancellor also informed Mugabe that his last day of employment was June 20, 2018.
On June 20, 2018, Mugabe responded to the vice-chancellor’s letter, indicating that his memorandum was not a resignation letter.
Mugabe denied owing the UZ three months salary in lieu notice, but the vice-chancellor insisted that he had resigned.
The UZ thereafter paid Mugabe terminal benefits for $4 089,04 on September 14, 2018.
On July 19, 2018, Mugabe approached the courts for unfair dismissal and sought conciliation of the matter.
Zhakata invited the parties for conciliation proceedings but the parties failed to reach a settlement and he terminated the conciliation proceedings by consent of the parties and proceeded to decide the matter in terms of s93(5)(c) of the Labour Act.
On June 25, 2019, Zhakata ruled that he had no jurisdiction to determine the matter. He declined on the basis that the parties had agreed that in the event of a dispute arising, their preferred dispute resolution method would be arbitration.
Aggrieved by this decision, Mugabe approached the Labour Court with an application for review of Zhakata's decision setting aside the decision before the Labour Court remitted back to Zhakata for determination.
In determining the resumed hearing, Zhakata found that Mugabe’s letter could not be construed as a letter of resignation.
Zhakata also found that Mugabe had been unfairly dismissed and ordered the UZ to pay Mugabe US$323 036,69 or equivalent RTGS at the prevailing Reserve Bank of Zimbabwe (RBZ) auction system rate as damages instead of reinstatement.
The UZ was also ordered to deliver a Toyota Land Cruiser, which Mugabe was using or ought to have been using, two laptops, a desktop and 11 520 litres of fuel. The fuel was to be paid for in local currency at the prevailing RBZ auction system rate.
The Labour Court confirmed the judgment in favour of the UZ and approached the Supreme Court, arguing that Mugabe had terminated his contract.
It also argued that Mugabe cannot be granted damages for unlawful termination of employment.
After hearing arguments from both parties, the Supreme Court bench agreed that Mugabe was unfairly dismissed.
“Damages in respect of unfair termination of fixed term contracts are generally calculated, regard being had to the total amount the employee would have earned under the contract had the employment relationship continued.
“Essentially, such damages aim to place the employee in the position he or she would have been in had the contract run its full course, unless the contract of employment specifies otherwise with a specific termination clause.
“The court a quo’s confirmation of the award in favour of the second respondent (Mugabe) is unassailable in this regard and cannot be faulted for upholding the first respondent’s award.”
