As a result of the legal action Harare City Council could lose 33 trucks if its former chief accountant, Mr. Tendai Kwenda, goes ahead with a sale in execution to recover US$650 000 he claims the municipality owes him in unpaid salaries and benefits.
According to the Herald report, Mr. Kwenda was unprocedurally suspended from his job over the period December 2008 to January 2009.
He approached the High Court for redress and was awarded Z$3,1 septillion, which was to be paid by any legal tender, for the period his salary and benefits were withheld in pursuance of his illegal suspension.
Armed with that determination Mr. Kwenda demanded US$650 000 which is the equivalent of the Reserve Bank of Zimbabwe official foreign currency exchange rate between the US$ and the ZW$ that prevailed over the period the accountant was denied payment.
There is legal paralysis in Zimbabwe over settlement of labour disputes that arose during the Zimbabwe dollar era but were not settled and or spilled over into the current multi-currency era.
The Labour Court Senior President Mr. Andrew Mutema whose court is the final court of arbitration in labour disputes acknowledges the jurisprudence crisis within his courts caused by the migration from the ZW$ to multi currency usage.
He describes the crisis the court faces in awarding damages in ZW$ as being the equivalent of the court "giving workers stones to buy bread."
Yet he still maintains that in the absence of Supreme Court guidance on the matter of converting unpaid dues for former workers who lost their jobs illegally from invalidated ZW$ to other functional currencies his court’s hands were tied and would continue disposing cases in ZW$ denominations and leaving it up to the parties to agree on mutually acceptable conversion rates.
"It would have been better if there had been a precedent like a Supreme Court ruling that the workers be paid in forex, but there is none," Mr. Mutema told the Herald adding;
“It was up to companies and workers to agree on forex restitution.”
The absurdity of the Labour Court position in failing to convert pre multi currency dispute settlement awards to multi currency equivalent values is a manifestation of political controversies that underpin the hasty migration from the dysfunctional and worthless ZW$ to multi currencies without first agreeing on a legal framework to do so.
ZW$ savings by individuals and companies alike held in cash or bank accounts were rendered worthless for all and sundry overnight as a consequence of this migration.
Insurance policies and other liquid securities owned by individuals and companies were not sparred either.
But it was much harder and harsher for former workers who were denied access to salaries and benefits by illegal terminations and suspensions from uncouth and vindictive employers.
While the effects were the same to all affected Zimbabweans the illegally deprived former workers had no chance whatsoever to mitigate their losses by converting their withheld salaries and benefits into other assets that would hedge them against currency invalidity like land, buildings, plant and machinery whose values did not diminish as a result of currency migration.
It also boggles the mind why the Courts are unwilling to resort to the official exchange rates that were in use at the time of deprivation preferring rather to wait for the Supreme Court to give them directions.
If during the ZW$ era the State was able to source foreign goods and pay international obligations using a rate of exchange why can’t that rate apply in cases where employees were denied access to ZW$ payments illegally?
The Ministry of Labour is currently reviewing the main employment Act of the country and it is hoped that the Executive action will address this very critical area that has continued to disempower employees on whom an illegality was performed.
The dual punishment they are being currently subjected to is totally unjustified given that the country always had a rate on which it based its foreign transactions conversion for international trade and travel payments yet the courts are reluctant to apply the same to convert awards to employees who successfully challenge their illegal dismissals and or suspensions.
To add insult to injury the same courts give criminal employers the option to reinstate or constructively terminate contracts by way of damages in lieu of illegal terminations yet they fall short in determining the quantum of damages in a functional currency.
In all cases where labour disputes have been terminated in courts following an illegal termination the Labour Court has routinely ordered reinstatement of the employee or alternatively restitution by way of damages to be agreed between the parties failure of which either party was free to approach the courts for quantification of the damages.
The employers have persistently abused this clause in our laws to delay payments of damages until hyperinflation reduced their obligations to nothing rendering the employee’s recourse to the courts an exercise in futility.
Now that the hyperinflation armoury has been broken it appears the courts are doing their best to replace it by refusing to order restitution in functional currencies in the country.
The adherence to calculation of damages in lieu of wrongful, unprocedural and illegal termination of employment contracts is indicative of a legal system that is hamstrung by conservatism and irrelevant as an arbiter of dynamic and complex 21st century litigation demands.
There are many workers in the country who have been illegally punished and deserve restitution but if the country’s courts are to persistently award them restitution in a dysfunctional currency denomination like the Zimbabwe dollar, of what use are they to the aggrieved workers then?
The correct and uncontested position the courts should take is to award damages in a functional currency established through the use of the official exchange rate that prevailed at the time the law was vitiated.
It does not make sense for the courts to ask the parties to agree a conversion rate out of court when the very reason the parties would have approached the courts in the first place was because there was lack of consensus between them.
The thinking in the Labour Court is similar to a Police Officer telling an assaulted victim who reports the assailant to go back to the assailant and negotiate peace with the rogue.
President Mugabe believes that Reserve Bank Governor Gideon Gono is the best candidate for the job but the people who lost their entire life savings to his financial profligacy like all the 80% unemployed and the 100%investors who lost their lifetime investment will forever disagree with him.
All hope is not lost though.
The MDC-T must ensure that the employers who abused employees and vitiated employment contracts must be held accountable to pay restitution to their victims in functional currencies and the labour Act review provides them a good starting point.
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