Supreme Court Awards UZ Bursar US$320k

By Desmond Chingarande, NewsDay - A bursar who was fired at the University of Zimbabwe for refusing to sanction transactions that were against the requirements of the Public Procurement and Disposal of Public Assets Act has been compensated by damages worth US$323 046.

Vengai Mugabe brought to the attention of authorities the fact that all procurements whose value exceeds US$20 000 ought to be subjected to a bid.

He protested his termination with the Supreme Court awarding him US$323 046 as unfair termination.

The UZ had protested a Labour Court order to pay Mugabe US$323 046 but the case was dismissed for lack of merit.

UZ had named Jealous Zhakata, labour officer and Mugabe as respondents in its application.

The Supreme Court panel led by Justices Antonia Guvava, Tendai Uchena and Hlekani Mwayera heard the application.

The Supreme Court bench confirmed an October 2, 2022, draft order by Zhakata in favour of Mugabe and rejected the appeal on hearing.

Mugabe had been serving as bursar on a fixed tenure contract since July 1, 2017, which was to expire on June 30, 2021.

The vice-chancellor was informed by the court that on June 5, 2018, Mugabe signed a memorandum to him in protest against procurement transactions that he had instructed him to facilitate for payment in his role as the bursar.

Mugabe informed the vice-chancellor that the transactions were contrary to the Public Procurement and Disposal of Public Assets Act provisions.

In the memorandum, Mugabe brought to the notice of the vice-chancellor that all procurements whose value is above US$20 000 must be put out to a bid, but the latter failed to respond.

It is on June 14, 2018, following pressure to sanction the payments that Mugabe wrote once again to the vice-chancellor reaffirming his earlier position.

He informed the vice-chancellor that if his refusal to approve the transactions was to remain a bottleneck for the growth of the university, he was willing to resign and was requesting a round table to seal his immediate exit from the university.

Mugabe proposed that in the event the parties agreed to his resignation, they would negotiate an amicably acceptable package.

On 19 June 2018, the vice-chancellor informed Mugabe that he had accepted his resignation with effect from that date.

Mugabe was informed that he had breached his employment contract by not giving the three months' notice as stipulated and was therefore required to pay the UZ an equivalent of three months' salary.

The vice-chancellor also informed Mugabe that his employment ceased on 20 June 2018.

On 20 June 2018, Mugabe responded to the vice-chancellor's letter and assured him that his memorandum was not a letter of resignation.

Mugabe renounced being in debt to the UZ three months' salary in lieu notice, but the vice-chancellor remained adamant that he had resigned.

The UZ then paid Mugabe terminal benefits for $4 089,04 on 14 September 2018.

On 19 July 2018, Mugabe approached court for unfair dismissal and applied for conciliation of the case.

Zhakata invited the parties into conciliation proceedings but the parties failed to reach agreement and he terminated the conciliation proceedings by agreement of the parties and proceeded to decide the case in accordance with s93(5)(c) of the Labour Act.

Zhakata on 25th June, 2019, held that he had no jurisdiction to decide the matter. He declined on grounds that the parties had agreed that in the event of any difference, their mode of resolving the same would be arbitration.

Complained against this decision, Mugabe approached the Labour Court with an application to review Zhakata's decision overturning the decision before the Labour Court referring back to Zhakata for determination.

In determining the resumed hearing, Zhakata held that Mugabe's letter could not be construed as a letter of resignation.

Zhakata also laid to rest the facts that Mugabe was unjustifiably dismissed and ordered the UZ to remunerate Mugabe US$323 036,69 or equivalent RTGS under the RBZ auction system prevailing rate as damages instead of reinstatement.

The UZ was also instructed to furnish a Toyota Land Cruiser, which Mugabe was driving or ought to have been driving, two laptops, a desktop and 11 520 litres of fuel. The fuel was to be paid for in local currency at the prevailing rate at the RBZ auction system.

The Labour Court upheld the ruling in favour of UZ and went to the Supreme Court, claiming that Mugabe was dismissed from his contract.

It also argued that Mugabe cannot be awarded damages for unfair dismissal.

The Supreme Court panel, after listening to the two parties, ruled that Mugabe was unfairly dismissed.

Damages on account of violation of fixed term agreements where these are unjustly put to an end are traditionally calculated, the attention being focused in particular upon the total that would have accrued if the contract was still working on during that span as contracted by the labour contract.

"By and large, these damages intend to leave the employee in the position they would have enjoyed but for termination of the contract within its limit except where explicitly stipulated under some contractual cessation term.".

The affirmation of the award to the second respondent (Mugabe) by the court a quo is unquestionable in this regard and cannot be faulted for confirming the first respondent's award." NewsDay