A BULAWAYO company director, who was twice certified dead by doctors before he “resurrected” to find that his employer had already paid for his funeral expenses, has finally won a bruising 16-year legal battle to be reinstated by the company, Sunday News has learnt.Nkululeko Mabhena, who was employed as the marketing director of PG Industries’ subsidiary, Zimboard Products (Pvt) (Ltd), had to endure a legal fight with his employers since 1999, challenging his constructive dismissal, salary and benefit arrears after the company reportedly took advantage of his ill-health.
He was reinstated to his position in December 2012 by Bulawayo High Court judge Justice Lawrence Kamocha but the company failed to comply with the order and instead sought to retrench him.
According to court papers, PG Industries realising that Mabhena was refusing to be retrenched reportedly connived with Retrenchment Board chairman Francis Mafuratidze to forge the Minister of Public Service, Labour and Social Welfare’s consent for Mabhena’s retrenchment.
After the purported approval, PG Industries deposited $10 000 in Mabhena’s account as a retrenchment package and offered him an old Mazda B1800 at book value.
However, Mabhena rushed to the High Court and challenged his retrenchment arguing that the retrenchment consent was fraudulent as it had not been authorised by the minister.
He also sought the arrest of PG Industries boss, group chief executive officer Hillary Munyati and human resources executive Caroline Mapupu for deliberately supplying the High Court with false information about his retrenchment.
Mafuratidze, the Retrenchment Board, the Minister of Labour and Social Welfare, PG Industries (Zimbabwe) Limited and Zimboard Products (Pvt) (Ltd) were cited as first, second, third, fourth and fifth respondents.
However, at the height of the case, the Retrenchment Board chairperson in November 2013 confessed in court that he had exclusively dealt with Mabhena’s retrenchment without the involvement of the minister as required by the law.
Mafuratidze confessed after Mabhena sued former Labour Minister Mr Nicholas Goche over the retrenchment approval.
Mr Goche reportedly distanced himself from the matter, the court papers reveal.
After all the drama, PG Industries was left with egg on their face after another Bulawayo High Court judge, Justice Andrew Mutema, a fortnight ago, reinstated Mabhena to his position after ruling that his dismissal and retrenchment were unlawful.
Justice Mutema’s ruling put to an end an otherwise gruesome legal battle between Mabhena and his employer.
“The decision by the 1st and 2nd Respondent (Mafuratidze and the Retrenchment Board ) to hear and determine the retrenchment of Applicant (Mabhena) without compliance by 4th Respondent (PG industries) and Zimboard Products Private Limited with court order HB 25/2007 or judgment under HC1713/2009 reserved by the Honourable Mr Justice Kamocha be and is hereby set aside and declared null and void,” ruled Justice Mutema.
“The decision by the 3rd respondent being the Minister of Labour and Social Welfare to approve the applicant’s retrenchment and the consequent ‘package’ be and is hereby set aside and declared null and void,” he added.
“For the avoidance of doubt the retrenchment proceedings conducted and concluded by the respondents jointly and severally be and are hereby set aside and declared null and void on grounds of procedural and substantive law irregularities, irrationality, bias and breach of applicant’s rights to a fair hearing in accordance with tenets of the Labour Act and laws.”
Justice Mutema also ruled that Zimboard Products (Pvt) (Ltd) issue Mabhena with a contract within 30 days and said the $10 000 paid to him under the purported retrenchment proceedings should be allocated towards his pay or salary.
PG Industries has already given him an office after the ruling.
In his evidence-in-chief, Mabhena said his woes started in 1999 but escalated in January 2004 when he was taken ill and admitted to Mater Dei Hospital battling for his life.
He said PG Industries and Zimboard Products (Pvt) (Ltd) refused to reinstate his medical aid and take responsibility for his medication.
“Mater Dei then stabilised applicant and transferred him to United Bulawayo Hospitals (UBH) as a classical destitute and the hospital card shows that PG Industries and Zimboard Products distanced themselves from Applicant (Mabhena),” submitted Mabhena.
“Applicant was pronounced dead (twice) at UBH within the period 21st January and 22nd January 2004 and on hearing of the applicant’s demise PG Industries and Zimboard Products (Pvt) (Ltd) quickly paid out Z$10 million for applicant’s funeral expenses which they said was a donation as applicant had voluntarily resigned and was no longer an employee.”
Mabhena told the High Court that when he miraculously recovered, his employer connived with his wife’s relative, Jethro Siziba, and the then PG group legal officer to have his wife file an urgent Maintenance Court application falsely alleging that the Z$10 million was actually paid to Mabhena as his “terminal benefits following his voluntary resignation while in a coma”.
From there the legal battle heightened until its conclusion a fortnight ago.
PG Industries was represented by Shepherd Chamunorwa of Calderwood, Bryce Hendrie and Partners Legal Practitioners while Mabhena was a self-actor. sunday news
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