Christmas Mazarire v Retrenchment Board & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/679/16
HELD AT HARARE 17 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/679/16

HELD AT HARARE 17 MAY 2016				CASE NO LC/H/REV/125/15

& 4 NOVEMBER 2016

In the matter between:

CHRISTMAS MAZARIRE				Applicant

And

RETRENCHMENT BOARD				1st Respondent

And

OLD MUTAL SHARED SERVICES			2nd Respondent

Before The Honourable Chidziva, J

For Applicant		O Matizanadzo (Legal practitioner)

For 1st Respondent		T Shamba (Civil Division)

For 2nd Respondent		N Madya (Legal Practitioner)

CHIDZIVA J

This is an application for review of the determination by the Retrenchment Board dated 13 October 2015.  The Retrenchment Board in its determination stated that

“Kindly be advised that the Retrenchment Board has no jurisdiction over disputes arising from terms and conditions of employment.

Please refer the matter to a labour officer as per Section 93 of the Labour Act [Chapter 28:01]”

The background of this matter is that

The 1st respondent was requested to determine whether in computing the package due to the applicant the 2nd respondent should utilize what is termed “pensionable salary” or what the applicant was getting which is the “total guaranteed monthly salary.”

The 1st respondent did not make a determination on the computing of the package and as a result the second respondent then made a unilateral decision to pay the package using the pensionable salary.

The pensionable salary was pegged at USD6 504.30 and the total guaranteed monthly salary was pegged at USD10 122.36.  Applicant was getting the total guaranteed monthly salary as his salary.

The decision by the 1st respondent not to determine which salary the second respondent was to use and the unilateral decision by the second respondent is alleged to have prejudiced the applicant in the total sum of USD97 247.07.  It is this amount which the applicant sought to recover through this application.

The grounds for review are that

The 1st respondent acted irrationally abdicating its statutory duty to determine and finalise a retrenchment process by making a definite determination on the monetary package to be paid to the applicant.  It sought to refer the matter to another body which has no jurisdiction on the dispute.

The applicant requested for a set down of the matter so that both parties could be heard in argument.  Instead, first respondent declined the request and proceeded to make its final determination as contained in the letter of 13 October without affording the parties the opportunity to be heard.

The process directed by the Retrenchment Board is ultra vires the provisions of the Labour Act and are unlawful, null and void.

The applicant was receiving a total guaranteed monthly salary which he received during the tenure of the contract of employment and it, is USD10 122.36.  The employer should have used this figure in computing the retrenchment package.

The applicant prayed for an order

An order directing the second respondent to pay to the applicant the shortfall on the retrenchment in the sum of USD97 247.07.

Alternatively, that the matter be remitted back to the Retrenchment Board for determination within fourteen days of the court order.

In response the respondent stated that

In terms of Section 12 (c) (b) of the Labour Act [Chapter 28:01] the 2nd respondent as the employer, exhausted its jurisdiction in the matter and became functus officio in respect of the matter.

The Minister acting in terms of Section 12( c)(a) of the Labour Act approved the proposal by the 2nd respondent to retrench the applicant on 2 March 2015.  The decision was brought to the attention of the parties.

The decision to approve the retrenchment of the applicant was that of the Minister.  The 1st respondent merely made recommendations.

The applicant failed to challenge the decision of the Minister within twenty one days despite being aware of the decision of the Minister on 3 March 2015.

The applicant in due course agreed to the computation of his retrenchment package by the 2nd respondent and he even made several follow ups on the issue of taxation of his package.

The dispute in this case is on the computation of the retrenchment package

Section 12 (c) (6) of the Labour Act states that where a matter is referred to the Retrenchment Board

“The Retrenchment Board shall consider any matter referred to it in terms of subparagraph (iii) of paragraph (a) of subsection (i) or subsection (40 and, having regard to the factors referred to therein shall within two weeks of the matter being referred to it, recommend to the Minister in writing whether or not the proposed retrenchment should be permitted and, if so, the terms and conditions upon which it should be effected.”

The Retrenchment Board’s decision was that the matter was supposed to be referred to the labour officer despite the issue referred for determination being couched as follows

“whether the package to be paid to the employee is to be computed on the basis of his “pensionable salary” as affected by the employer or on his total guaranteed remuneration package as claimed by the employee.”

Page 154 – 155 of the record shows that the Minister eventually made a decision after the Retrenchment Board’s recommendation Section 12 (8) of the Labour Act states that even where the Board fails to make a recommendation the Minister can still get relevant documents and make a decision.  In this case it is the Minister who made the decision after recommendations from the Board.  It is this court’s view that the grievance in this case is against the Minister who made the final computation of the package.  It is also this package that the applicant is not happy about which he alleges was unilaterally quantified by the 1st respondent and was endorsed by the Minister.

The Minister made the decision and thus the complaint should be raised against the Minister not the Board which merely made recommendations.

Applicant has not challenged the Minister’s decision on review.  This court therefore cannot interfere with the decision through the backdoor.

To that end therefore this court finds that the application lacks merit.

Accordingly I order as follows

The application for review be and is hereby dismissed with costs.

Matizanadzo & Warhurst, applicant’s legal practitioners

Wintertons, respondent’s legal practitioners