Enock Chungu & 147 Others v African Sun (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/181/24
HELD AT HARARE 28 MARCH 2022
CASE NO. LC/H/297/21
AND 22 APRIL 2024
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OF ZIMBABWE
LC/H/181/24

HELD AT HARARE 28 MARCH 2022
AND 22 APRIL 2024

IN THE MATTER BETWEEN:-

ENOCK CHUNGU & 147 OTHERS
AND
AFRICAN SUN (PRIVATE) LIMITED

Before the Honourable Ms. Justice B.T. Chivizhe and
The Honourable Mr. Justice L.M. Murasi

For Appellants
Mr. M. Gwisai
For Respondent
Mr. J. Bakasa

MURASI J.,

This Court sincerely regrets and apologises for the inordinate delay in the determination of this matter as it is trite that justice delayed is clearly justice denied.

BACKGROUND

The facts of this case emanate from the effects of the Covid-19 pandemic. The pandemic had worldwide implications. The Respondent was obliged to close the doors to several of its hotels. Employees were required to stay at home. Respondent continued up to some stage to pay these employees when they were not offering any work. The record shows that the Respondent had several meetings with the employees’ representatives. Respondent resorted to paying 50% of the wages. It is also common cause that Respondent later retrenched a sizeable of the employees after having notified the Retrenchment Board which Board approved the retrenchment process. The matter ended up with the Designated Agent who determined that the claim for unfair and unprocedural retrenchment was devoid of merit. Appellants are dissatisfied with the decision and have approached this Court for relief.

The Appellants’ grounds of appeal are as follows:

1. The Designated Agent misdirected herself at law in ruling that Respondent complied with section 12D (2) of the Labour Act by adopting its own alternative measures to the specified ones of short-time and/or shift work, whereas because there was no agreement with the employees concerned, workers committee or works council on the specified measures, the Respondent should have, but did not, refer its proposed measures for acceptance or rejection by the employment council or Retrenchment Board as required under sections 12D (2a), (2b) of the Act.

2. The Designated Agent erred at law and misdirected herself on facts in ruling that the non-involvement of the ‘employees concerned’ in the retrenchment negotiations did not invalidate the retrenchment proceedings because the workers committee was representing all the Respondent’s employees, whereas at law and specifically under section 12C (1) and (2) of the Labour Act, the workers committee has no such authority, and on the evidence presented, the workers committee in casu, did not have such authority.

Submissions by the Parties

Appellants’ Submissions

Mr. Gwisai stated that the interpretation accorded to section 12D by the Designated Agent as regards the implementation of special measures was clearly incorrect. He submitted that the Designated Agent had determined that the use of the word ‘may’ was discretionary whereas it should be interpreted as peremptory. He also pointed out that the Designated Agent had stated that these measures had been complied with. He argued that this was a misdirection at law as the provision was mandatory. Mr. Gwisai further submitted that the Designated Agent had in fact condoned the non-compliance by the Respondent of the measures in question.

Mr. Gwisai submitted that section 12D had undergone a change in 2015 in that where there was no agreement between the parties, an employer was required to give written notice and approach the NEC and the Retrenchment Board. He further argued that even if there was an agreement and the employee(s) was not represented, the employer was enjoined to file the agreement. Mr. Gwisai stated that the special measures undertaken by the Respondent were not those contemplated in terms of section 12D (2) of the Act. He added that the existence of a supervening impossibility should not lead to the termination of employment as that should only result in the suspension of duties on the part of the employee. He argued that in the present matter, the Respondent had taken an unilateral decision and the employees had agreed.

Mr. Gwisai further argued that even if the agreement had been reached, this should have been forwarded to the Employment Council as this was the essence of procedural fairness in the retrenchment process. He pointed out that the process became a nullity when the Respondent proceeded to issue notices of retrenchment. He further argued that there was no inclusion of the workers concerned and this resulted in serious prejudice to the Appellants as there was no evidence that the Appellants were invited to the meetings held by the Respondent. Mr. Gwisai further pointed out that he would rely on the submissions filed in the heads of argument which buttressed the points he had made.

Respondent’s Submissions

In response, Mr. Bakasa stated that he abided by the documents filed of record. He submitted that Respondent had faced an unprecedented pandemic but had continued to pay the full salaries despite the closure of several of its hotels. He further stated that the Appellants were at home and not offering any work during that period and Respondent was not accruing any revenues as a result of the closures. He submitted that the Appellants were not contesting the retrenchment itself and the reasons for it but the process. He added that the substance was more critical than the form and that the idea of consultation was rooted in pragmatism.

Mr. Bakasa further submitted that the measures as stated in section 12D (2) (a) did not suit the circumstances of the case as ‘shift work’ and short periods of work were not possible to implement during the Covid-19 pandemic. He referred to page 148 of the record and stated that all interventions had failed to yield the desired results. He added that the parties had been ad idem as to what processes should be taken in the circumstances in order to avoid retrenchment and that a report to the Employment Council would only be necessary in the event of disagreement. He reiterated the fact that the reasons for the retrenchment were uncontested. Mr. Bakasa further stated that some of the issues being raised in the appeal were not raised before the Designated Agent especially the contestation that the measures taken by the Respondent to mitigate the effects of an oncoming retrenchment were not measures as contemplated in terms of the Act.

Mr. Bakasa argued that the interpretation accorded to section 12C of the Act by the Appellants was incorrect as the section does not require any approval by the Employment Council for a retrenchment process. He stated that the role of that body had changed. He further submitted that there was substantial compliance with the law and the parties had agreed on the processes undertaken by the Respondent and no party was prejudiced in the circumstances.

ANALYSIS

The position is settled that the making of a finding of fact that is contrary to the evidence is a fatal mistake by the lower court (or trier of facts) that vitiates the decision made and gives room to the appellate court or tribunal to interfere with the finding. In Barros & Anor v Chimphonda 1999(1) ZLR 58 (S), the court held as follows:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if is mistakes the facts, if it does not take into account relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always (it) has the materials for so doing.”

In the first ground of appeal, Appellants take issue with the fact that the Designated Agent misdirected herself in ruling that Respondent complied with section 12D (2) of the Labour Act by ‘adopting its own alternative measures to the specified ones of short time and/ shift work’. It is further averred that there was no agreement with the employees concerned. How did the Designated Agent handle the issue? At page 30 of the record there is the following finding by her which is as follows:

“The measures to avoid retrenchment stipulated in section 12 D (2) are that of instituting shift work or short time work. It should be noted that the cited measures are not mandatory but the parties ‘may agree’ to implement them. For the respondent to implement shift work or short work was not feasible because the entities were closed due to Covid-19 induced lockdown coupled with low business thereafter. However, the respondent adopted other measures to avoid retrenchment. Fixed term contracts were terminated and employees were paid 50% salary from April to August 2020. The claimants were paid for six months whilst seated at home.”


The findings are supported by the facts. The Appellants do not contest that these facts are common cause. Therefore there cannot be any misdirection on the facts. Appellants had sought to argue that the Designated Agent was not correct in stating that the measures were not mandatory and that the word ‘may’ should be read as ‘shall’ making the provision peremptory.

In **Lwazi Sibanda, Betty Hlabangana vs Francisca Ncube and Others** SC 158/20, PATEL JA (as he then was) had this to say at page 18 of the cyclostyled judgment:

“The cardinal rule of construction is to ascertain the true intention of the lawmaker. In ascertaining that legislative intent, the golden rule of statutory interpretation is that every enactment must be given its plain, ordinary and grammatical meaning, unless to do so would result in some inconsistency, absurdity or repugnancy, in which case the provision may be construed and applied with such modification as may be necessary to obviate the anomaly in question. The corollary to this rule, where fundamental rights and freedoms or other constitutional provisions are implicated is that, the enactment must be construed, insofar as is possible without doing violence to its language, so as to conform with those rights and freedoms or other constitutional provisions. In the event that it is not possible to do so, the enactment is exposed to the risk of being challenged and struck down as being unconstitutional.”

The provisions of section 12C are clear and unambiguous. The procedure to be followed is clear. It should be noted that the amendment to the section came in 2015. Both sections 12C and 12D came up for amendment. It has been stated that “every enactment must be given its plain, ordinary and grammatical meaning” unless this leads to some absurdity. Whilst a statute is supposed to be read as one for consistency, one needs to look at the intention of the Legislature which comes out of the statute. What arises is the interpretation of the use of the word ‘may’ in subsection (2) of section 92D. In **Chiroswa Minerals (Private) Limited and Others vs Minister of Mines and Others** HH/261/11, PATEL J (as he then was) at page 5 of the cyclostyled judgment cited the case of **Sutter v Scheepers** 1932 AD 165 delivered by WESSELS JA which stated as follows:

“Now it is admittedly a difficult matter to lay down any conclusive test as to when a provision is directory and when it is peremptory. A long series of cases both here and in England have evolved certain guiding principles. Without pretending to make an exhaustive list I would suggest the following tests, not as comprehensive, but as useful guides. The word ‘shall’ when used in a statute is rather to be construed as peremptory than as directory unless there are circumstances which negative this construction: **Standard Bank Ltd v van Rhyn** (1925 AD 266).
 1. If a provision is couched in a negative form it is to be regarded as a peremptory rather than as a directory mandate. To say that no power of attorney shall be accepted by the Deeds Office unless it complies with certain conditions rather discloses anintention to make the conditions peremptory than directory: though even such language is not conclusive.

2. If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, carried out, then the presumption is in favour of an intention to make the provision only directory.

3. If, when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.”

It is trite that it is the duty of courts to try to get at the real intention of the Legislature by attending to the whole scope of the statute to be construed. Section 12C and 12D have been amended time and again in order to deal with the issue of retrenchment. Subsection (2) of section 12D commences with the following words ‘Subject to this section’. I do not need to delve into the interpretation of that provision. What follows is important. The subsection provides that before giving a notice to retrench, an employer ‘may agree with the employees concerned’. Firstly, there is the use of the word ‘may’. Secondly, the word ‘agree’ is part of that provision. It is clear that the Legislature did not intend to make this a peremptory instruction because the provision allows for an agreement between the parties. As observed in the Sutter Case above, the legislative instruction can only be directory. This is so, firstly, because of the use of the word ‘may’. Secondly, the absence of a sanction for non-compliance gives credence to such an interpretation.

I would also agree with the contentions made on behalf of Respondent in the heads of argument for the need of ‘pragmatism’ as quoted in the Atlantis Case in paragraph 2.5 of those heads of argument. I therefore do not find any fault in the finding by the Designated Agent and the first ground of appeal ought to be dismissed.

The second ground of appeal avers that the Designated Agent erred at law in ruling that the non-involvement of the employees did not invalidate the retrenchment process. The facts militate against the averment made by the Appellants. The record shows that the Respondent called upon the workers representatives to negotiate on several occasions. It is also not disputed that at least some 300 employees were involved in the process and these came from different hotels from all over the country. Page 200 of the record shows a record of the minutes of a meeting of 24 August 2020. The Chairperson asked the WC (Chairperson) to confirm whether the meeting was properly constituted and the WC Chairperson confirmed this position. Those minutes show that there were eleven (11) representatives representing eleven (11) hotels from around the country. The minutes of both the 24th and 25th August 2020 show that many issues were deliberated upon which involved the package to be paid to the employees.
 These representatives were engaged by the Respondent and it took two days in which they were negotiating the retrenchment package with the Respondent. These representatives put forward proposals in respect of the package which proposals were considered by the Respondent who eventually gave its position. The record also shows that individual notices were sent to employees affected by the retrenchment process. Samples of these notices are part of the record which also show that the employees signed the documents showing the acceptance of the retrenchment package. It has not been stated that the Appellants rejected the retrenchment package.

Further in respect of the negotiations referred to in the ground of appeal, section 12 C (2) refers to ‘employees concerned or their representatives’ and does not refer to any committee. The court finds that the Designated Agent did not misdirect herself in making the determination that she did. Any reasonable tribunal would have arrived at the same decision on the same facts. The second ground of appeal ought to be dismissed.

In the result the appeal, being devoid of merit, is hereby dismissed with no order as to costs.

MURASI J.    CHIVIZHE J. I agree.

Matika, Gwisai & Partners-    Appellants’ legal practitioners
Nyamayaro, Makaza And bakasa    Respondent’s legal practitioners.


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