Chikwanha Brighton v Alpha Media Holdings (PVT) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/791/2016
HARARE, 14 OCTOBER 2016 &
30 DECEMBER 2016
CASE NO LC/H/LRA/137/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/791/2016

HARARE, 14 OCTOBER 2016 &				CASE NO LC/H/LRA/137/2016

30 DECEMBER 2016

In the matter between

CHIKWANHA BRIGHTON						APPLICANT

Versus

ALPHA MEDIA HOLDINGS (PVT) LTD				RESPONDENT

Before the Honourable Muzofa J

The Applicant in Person

For the Respondent	S Thabete  (Legal Assistant)

MUZOFA J:

This is an application for confirmation of a ruling made by the applicant in terms of section 93 (5 a) and (5b) of the Labour Act [Chapter 28:01] “the Act”.

The applicant submitted that one Evans Mangwanya (claimant) a former employee of the respondent lodged a claim for non-payment of cash in lieu of leave and a minimum retrenchment package following the termination of his contract on notice.

The respondent and the claimant settled on the issue of cash in lieu of leave. The only issue for determination was whether the claimant was entitled to a retrenchment package.

The applicant further submitted that the claimant claimed US$1 398-80 as a retrenchment package. The claimant worked for the respondent from June 2010 to 31 October 2015. In terms of section 12 (c) of the Act as amended the claimant would be entitled to three months’ salaries as a retrenchment package.

The respondent opposed the granting of the claim before the labour officer.

The applicant granted the claim on the basis of section 12 (c) (2) of the Act as amended and the transitional provision in section 18 of the Labour Amendment Act, 2015.

In terms of the said provisions an employee whose services have been terminated as set out shall be entitled to a minimum retrenchment package of one month’s salary for every two years of service. The provisions are applicable to employees whose services were terminated on three months’ notice on or after 17 July 2015.

The court is unable to fault the applicant’s ruling as it is in line with the law.

The respondent opposed the confirmation of the ruling.

It was submitted for the respondent that on 27 July 2015 and 20 August 2015 it terminated by way of notice contracts of employment in respect of seventy five (75) employees. It paid all the statutory terminal benefits. The claimant who was before the applicant being one of the employees whose contract was so terminated.

According to the respondent the former employees have sought to claim and recover additional payments based on sections 4, 5 and 18 of the Labour Amendment Act No 5 of 2015.

Further to that the respondent submitted that section 18 thereof is inconsistent with sections 56 (1), 65 (1), 71 (2 and (3) and 86 of the Constitution of Zimbabwe. To that extent the respondent has filed an application with the High Court case number HC 6986/16 challenging the said provisions.

The order sought before the High Court is for section 18 of the Amendment to be declared inconsistent with the Constitution of Zimbabwe and therefore struck out of the Labour Act.

The respondent therefore requested the court to have this matter held in abeyance pending the determination of the case before the High Court.

The applicant opposed the request to have the matter held in abeyance pending the determination on the constitutionality of the said provision of the Labour Amendment Act. It was submitted that the claimant is entitled to the protection of the law and therefore should be paid his retrenchment package.

The applicant did not dispute that there is constitutional matter arising from the dismissal of the respondent’ s employees including the claimant in whose favour the ruling was made in this case.

The request by the respondent is not to dismiss the application but to temporarily shelve the case pending the determination before the High Court.

In my view everyone is entitled to the protection of the law.

The respondent should be given an opportunity to test the constitutionality of the said section. This matter can still be decided after the determination has been made and confirmed by the Constitutional court.

I find no prejudice befalling the claimant. To that extent I will grant the request by the respondent.

Accordingly the following order is made:

The application for confirmation of a ruling made by the Labour Officer Chikwanha Brighton be and is hereby postponed sine die pending the determination of the constitutional application before the High Court case number HC 6986/16.

There is no order as to costs.