“If there was acceptance of the variation, as there was, there was no claim to be
prescribed. It follows that by his conduct, the appellant impliedly consented to the variation of his contract. In such circumstances, he could not claim any benefits flowing out of the contract that had been varied.”
Category: Implied Consent to the Variation of a Contract
Introduction
It is trite in our law that an employment contract cannot be unilaterally varied without the consent of the employee.[1] It is also deep routed in the labour laws of this country that an employment contract is not cast in stone.[2] Changes in the economy, the industry among other factors may warrant changes to the contract.[3] It is accepted that consent can be explicit, that is given in writing. It can also be implied. Moses Mawire v Rio Zim Limited (Private) Limited deals with implied consent and demonstrates the far-reaching consequences of such consent.
Facts
The appellant was employed in 2006 at a time when the Zimbabwean dollar was still functional. His contract provided for a sundry of allowances. In 2009 the Zimbabwean dollar became moribund forcing companies, the respondent company included, to adopt the US dollar as a means of remunerating employees. A letter was written to the appellant employee advising him of the new USD salary. Allowances were excluded. This was on 9 February 2009. Despite the appellants contract stipulating that he was entitled to a motor vehicle, the employer continued to supply him with fuel and maintained his personal vehicle. In 2014, close to 5 years after the changes, the employee lodged a complaint with a labour officer. Conciliation failed and an arbitrator ruled that the employee was entitled to the back dated allowances that he was claiming. Aggrieved, the employer appealed to the Labour Court. It was the Labour Courts finding that the claims had prescribed, and that the employee had accepted the variation of his contract. The appeal was therefore allowed. It was this result that founded the Supreme Court appeal.
The Law
Prescription of the dispute
The appellants argument was that there was no prescription of the dispute since it was continuing as the employer not paying the contractual allowances every month. It was, however, the Supreme Court’s finding that the alleged non-payment of allowances every month constituted independent infractions which prescribed every two years. The appellants plea to have a judgement in favour of non-payments for the past two years, 24 months of the alleged non-payments, could not be sustained by the Supreme Court since this was not an issue in the court aquo. In this respect the Supreme Court argued:
“It is trite that a litigant cannot argue on appeal a case different to that presented in the proceedings a quo.”
Variation of the Contract
It was the courts finding that a memorandum had altered the appellants contract and for five years he received his salary without any complaints. It found that there was implied consent to the terms of the contract. The supreme court utilised the authority in Smith v Hughes where it was stated that:
“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”
Conclusion
Having found that the appellant had accepted a new salary without the allowances, that the appellant had accepted the variation to his contract, the appeal was dismissed.
[1] Agricultural Bank of Zimbabwe Limited t/a Agribank v (1) Celemio Machingaifa (2)
Chenjerai Mutambisi SC 61/07
[2] Chirasasa v Nhamo N.O. & Anor 2003(2) ZLR 206(S)
[3] Chirasasa v Nhamo N.O. & Anor 2003(2) ZLR 206(S)