Chinhoyi University of Technology v Chinhoyi University of Technology Workers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/268/2014
HARARE, 4 FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/268/2014

HARARE, 4 FEBRUARY 2014 &			  CASE NO LC/H/791/2011

6 JUNE 2014

In the matter between:

CHINHOYI UNIVERSITY OF TECHNOLOGY				APPELLANT

Versus

CHINHOYI UNIVERSITY OF TECHNOLOGY				RESPONDENT

WORKERS

Before The Honourable B S Chidziva	:	Judge

For the Appellant		S Mushonga   (Legal Practitioner)

For the Respondent	D Mwonzora   (Legal Practitioner)

CHDZIVA J:

This is an appeal against the decision of Honourable Arbitrator Peter Chinguruve dated 21 November 2011. The award stated as follows:

“Wherefore, after carefully analysing the facts and law, I make the following award:

‘That the claimants be paid a retrenchment package. The parties are to negotiate a retrenchment package failure the issue be referred to Retrenchment Board.’

I so award.”

The background of this matter is that the respondents were permanent employees of Chinhoyi University & Technology farm. Currently they are employed by the joint venture of Zim-China Wan Agriculture (Pvt) Ltd. It is alleged that the respondents were advised by Mr Rashidi the Human Resources Manager to join the new venture before it was too late. The respondents expected the appellant to pay them a retrenchment package. The appellant on the other hand expected the respondents to give notice of their termination of employment. The matter was referred for conciliation but parties failed to reach a settlement and the matter was referred for compulsory arbitration. It is this award that the appellant is appealing against in this court.

The grounds of appeal are as follows:

The arbitrator’s decision was so unreasonable and illogical to defy common sense to the extent of being irrational hence constitute a violation of the law.

Where an employee fails to give notice to an employer and joins a new employment venture that constitutes termination of employment and it is the employee who has abandoned the employment contract and the attendant benefits accruing from the contract of employment.

Where an employee unilaterally terminates a contract of employment and the employer does not waiver his right to notice then the employee cannot claim terminal benefits but only his or her own contribution towards pension.

Where an employee terminates his or her contract of employment by entering into another contract of employment without giving notice that employee will not be entitled to protection by S I 323 of 1993 as it has its own applicable provisions.

The issue which was referred for arbitration was whether the employees were entitled to benefits in terms of SI 323 of 1993 or not. For reasons best known to the arbitration that issue never saw day light.

It is a trite law that where an employee takes up new employment on a full time basis, the act of securing employment elsewhere is tantamount to official termination of employment a fact that the arbitrator ignored.

SI 323 of 1993 in section 23 (1) and (2) provides for gratuitous payment on termination of employment for employees in the agricultural industry when an employee has served for more than eight (8) years or more continuous service. None of the respondents could qualify for any payment in the arbitral award as they had not served the requisite period.

The respondents are all below sixty (60) years of age and again do not qualify in terms of SI 133 of 1993 contrary to the arbitrator’s implied award.

The arbitrator presumed that the employer waived his right to notice when there was no positive waiver on the part of the employer.

The appellant on these grounds therefore prayed that:

The arbitral award be set aside as it is illegal, un-procedural and unreasonable.

The respondents voluntarily terminated employment and that they should not be paid retrenchment packages.

The respondents should get leave pay if any and their direct contributions to pension.

The respondents should pay the appellant costs of suit.

In response the respondents told the court that:

The arbitral award by Honourable Arbitrator P Chinguruve is correct and cannot be faltered in any way.

The appellant tacitly waived its right to notice.

The appellant retrenched the respondents by terminating the respondent’s employment on account of the closure of the enterprise in which the respondent was employed.

The respondents are entitled to terminal benefits.

The respondents based on these grounds prayed that the appeal should be dismissed with costs for lack of merit.

It is common cause that:

The appellant through a letter written by the Human Resources and Administration Manager wrote a letter to the respondents advising them to apply for employment to a new venture before it was too late.

The appellant was no longer in a position to provide employment since its place of operation had been taken over by the new employer.

What is to be decided is:

Whether the employer terminated the employees contract of employment by retrenchment or not.

Whether the taking over of the farm in a joint venture between Zimbabwe National Army and the Chinese Government constitute termination of employment on the part of the employees.

The Labour Act on page 8 of the Act has defined retrenchment as follows:

“In relation to an employee means terminate the employee’s employment for the purpose of reducing expenditure or costs, adapting to technological change, reorganising the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

In a letter addressed to the Workers’ Committee of Cut farm Mr Rashide the Human Resources and Administration Manager indicated that:

The Joint Venture Company was taking over the operations of the farm;

The employees were free to go and seek employment in that Company lest they will be left out;

Cut farm would discuss with its workers concerning the statutory payments later; and

The terminal benefits would be discussed with relevant offices like NEC.

The letter clearly showed that the appellant was no longer going to operate. It was now re-organising itself. This letter implied that there was no need for the respondents to give notice of termination to the appellant who had already communicated to them that they were no longer going to operate. The letter indicated a closure of the enterprise thereby indicating that the respondents were retrenched. From the contents of Mr Rashide’s letter the respondents went on to join the new venture expecting the package that had been promised thereon. The letter was an official communication addressed to the Board that represented workers. Closure of the enterprise meant retrenchment.

In view of the foregoing the respondents were retrenched and the arbitrator was correct when he ruled that the appellant had to pay the retrenchment package.

This court therefore finds that the appeal lacks merit.

Accordingly it is hereby ordered that:

The appeal be and is hereby dismissed with costs.

Mushonga & Associates, appellant’s legal practitioners

Mwonzora & Associates, respondents’ legal practitioners