C Kakomo & 5 Others v Savanna Tobacco (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/26/13
HELD AT HARARE 22ND JANUARY 2013
CASE NO
JUDGMENT NO LC/H/26/13
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/26/13

HELD AT HARARE 22ND JANUARY 2013	      CASE NO LC/REV/H/94/11

C KAKOMO							Applicants

& 5 OTHERS

SAVANNA TOBACCO					Respondent

(PVT) LTD

Before The Honourable G Musariri, President

For Applicants			Mr R Masomera, Unionist

For Respondent			Mr I Chagonda, Attorney

MUSARIRI, G:

Applicants’ application for review is based upon a founding affidavit made by the union representative.  The relevant portions of the affidavit read as follows,

“5. 1, on behalf of the Applicants, do hereby file an Application for review

of proceedings against an Arbitration Award handed down by Honourable Munyaradzi Dangarembizi on 24th day of August 2010.

6. The Arbitrator was asked to arbitrate on whether the Respondent implemented one of the terms of a retrenchment i.e. item 5 of the package and (2) to determine the appropriate remedy.

7.  The Arbitrator dismissed the claim on the grounds that it was not a

claim recognizable by the Labour Act.

8.  I strongly believe that the Arbitrator misdirected himself right from

the onset as the matter was referred to him in terms of the Labour Act

and the retrenchment exercise was done in terms of section 12 C of

the Labour Act.

9.  Item number 5 of the Retrenchment package clearly shows that

Respondent replaced the payment of relocation allowance with

financial  and material assistance.

10. The part payment and the subsequent withdrawal of that payment

and  the withdrawal of materials clearly shows that the package was

not concluded. The retrenchment exercise can only be concluded when

the outstanding payments are made.

11. The Arbitrator’s analysis and summary of evidence was flawed as it

disregarded crucial evidence put forward by the Applicant in the

submissions and the admissions made by the Respondent in their

submissions which should have had a bearing on the final award if it

had been considered.

12. The Arbitrator also erred by awarding that item 5 was implemented

yet it forms the basis of the dispute with the Respondent even

admitting to paying only part of what was promised and reneging on

the rest.”

Respondent opposed the application.  The opposing affidavit was

deposed by Respondent’s Human Resources Manager.  It complained that the founding affidavit was deposed by the representative instead of the

Applicants. It averred that the application was filed out of time.  It further averred that the application was fatally defective for failure to cite the Arbitrator as a co-Respondent.

However during oral argument, the parties focused on whether the Arbitrator correctly found that item 5 of the retrenchment package was implemented.  The contentious item is contained in Respondent’s letter dated 30 June 2009 addressed to Ms J Makurumidze.  It is titled “re: Retrenchment Package.”  The item 5 read as follows,

“5	Relocation allowance – No-relocation allowance because Savanna

Tobacco would assist you in setting up a joint venture company with fellow employees who were also retrenched.”

This provision is confirmed by paragraph 8 (IV) of the minutes of the meeting of Respondent’s Works Council on 30th June 2009 which are filed of record.

It was common cause Respondent assisted Applicants in setting up the “joint venture company.”  The company was named “Crestobil”  The company operated a catering business on Respondent’s premises.  Respondent stated that the company operated for 3 months  Applicants stated that the company operated for 9 months.  Thereafter the catering arrangement was terminated.  On these facts alone, I am persuaded that the Arbitrator was correct in his findings. Clearly Respondent did assist Applicants in setting up the joint venture company, Crestobil.  The company operated for some months until its contract was terminated.  Any dispute or issues connected with the operations or funding of the joint venture were matters between Crestobil and Respondent.  In other words, item 5 of the retrenchment package had been

implemented.  Applicants as retrenches, had no further recourse against Respondent in respect of that item.  They might have claims under the corporate veil of Crestobil a company registered under the Companies Act Chapter 24:03.  Hence the Arbitrator’s finding which I agree with, that the claims made are not cognisable under the Labour Act Chapter 28:01.

Wherefore it is ordered that,

The application for review is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT