Frog Cables Pvt Ltd v Roselyn Dzepatsva & 9 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/6/25 HARARE 4th NOVEMBER, 2024
AND 3RD JANUARY,2025
CASE NO LC/H/123/22
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/6/25 HARARE 4th NOVEMBER, 2024

AND 3RD JANUARY,2025	CASE NO LC/H/123/22

FROG CABLES PVT LTD	APPLICANT

vs

ROSELYN DZEPATSVA & 9 OTHERS	1ST to 10th RESPONDENTS

Before the Honourable Chivizhe J

For applicant –	Mr T Mupamhadzi (Legal Practioner) For respondent –	Mr L Seremani (Legal Practioner)

CHIVIZHE, J:

This is an application for leave to appeal to the Supreme Court against a decision of this court rendered on 4th December 2020 under judgement reference LC/H/296/20. The application is premised on section 92F (2) of the Labour Act [Chapter 28:01] as read with rule 43 of the Labour Court Rules, 2017. The application is opposed.

POINTS IN LIMINE

On the date of hearing the Applicant’s counsel raised a point of law. The point raised was that the Opposing Affidavit that had been filed with the Notice of Response was irregularly drawn up. It appeared from a perusal of the same that the affidavit had been deposed to, signed and commissioned by all the 10 respondents at the same time.

This was clear as the Opposing Affidavit was carrying on the face of the document the signatures of all 10 Respondents which would suggest that they had all signed before the Commissioner of Oaths on the same date. This was however practically impossible. It was

counsel’s further submission that such an affidavit in any event was clearly irregular. It was also a novel one in this jurisdiction. Counsel referred the court to an authority in Gerald Mpofu and another vs Qhakaza Investments Pvt Ltd HC-B-1031/2010 where the High Court faced with similar circumstances had reached a conclusion that the Founding Affidavit filed in that case was fatally irregular. The court had proceeded to dismiss the application with costs. The Applicant’s prayer in this case was that this court should come to a similar conclusion. The Opposing Affidavit, being fatally defective, the court was urged to find that there was no Notice of Response filed on behalf of the 1st to 10th Respondents. The application had to proceed as an unopposed matter.

The 1st to 10th Respondents Counsel conceded to the fatal irregularity in the Opposing Affidavit. He invited the court, to, in its discretion, either proceed with the matter as unopposed or give any further directions it might deem necessary in order for the matter to be propelled forward.

The court, after considering the parties submissions reached the conclusion that the Opposing Affidavit was indeed fatally irregular. It was clear to the court that although the Labour Court Rules, 2017 did not carry similar provisions to the ones in the High Court rules, based on which, the High Court had largely decided the matter in the Gerald Mpofu and another case referred to supra, the court still agreed entirely with the Applicants submission that the Opposing Affidavit was fatally irregular.

It is a position of the law based on the common law that an affidavit has to be individually deposed to, signed and commissioned before a Commissioner of Oaths. In this case the 1st Respondent Roselyn Dzepatsva was required to depose to the Opposing Affidavit and have it commissioned individually. For the rest of the Respondents they were required to file Supporting Affidavits which would have also been individually deposed to and commissioned. Having arrived at this conclusion it was clear that the 1st to 10th Respondents having failed to provide a valid Notice of Response to the application the matter had to proceed as unopposed by virtue of rule 29 of Labour Court Rules, 2017. The matter so proceeded to be heard by receiving submission from their applicant council.

The court had also raised a point of law mero motu that the matter had actually prescribed. The parties having filed submission s and the court noting that the issue of prescription had arisen out of a mistake on the date of the order granted by this court it therefore meant that the point had become redundant.

The following constitutes the court’s determination on the merits of the application.

MERITS

The application placed before the court is an application for leave to appeal against a judgement rendered by this court on 4th December 2020 under reference LC/H/296/2020. On the basis of section 92 F (2) of the Labour Act [Chap 28:01] there are two requirements that an applicant has to meet. Firstly, an applicant has to prove /establish that the intended appeal grounds are based on questions of law. The second requirement is that the intended appeal grounds must carry reasonable prospects of success. See Shackem Barrister Ngazimbi vs Murowa Diamonds (Pvt Ltd) 2013 (1) ZLR569 (S).

BACKGROUND FACTS

The brief facts may be summarised as follows. The 1st to 10th Respondents were all employed by the Applicant in various capacities. They were all engaged on the basis of open ended contracts. The Applicant in 2015 was facing challenges due to the economic melt-down associated with that period. The Applicant introduced two mitigation measures, namely short time work as provided in the industry regulations and a voluntary retrenchment program. It is common cause the 1st to 10th Respondents formed the group that opted for voluntary termination. The Applicant thereafter paid to them retrenchment packages which were deposited into their accounts. Upon receipt of the packages the 1st to 10th Respondents were aggrieved as the packages where not in line with clear statutory provisions. More specifically the packages were based on 1 1/2 months’ notice pay instead of 3 months’ notice pay. Pension benefits were also not included. The 1st to 10th Respondents referred a claim of unlawful termination to the Labour Officer.

When the parties failed to conciliate the matter was referred to compulsory arbitration. The terms of reference for the Arbitrator to determine were two, firstly, whether or not the complainants employment was unlawfully terminated. Secondly, what was the appropriate remedy.

The Arbitrator after considering the parties submissions and the evidence placed before him issued an award in which he had reached a conclusion that the 1st to 10th Respondents were properly terminated. He however, also noted in the process that the Applicant had cut corners in

the retrenchment process. Because of the 1st to 10th Respondents acceptance of the reduced terminal benefits he was however constrained to interfere with the packages awarded as at that stage. He therefore concluded that there had been lawful termination of employment on the basis that the 1st to 10th Respondent freely and willingly accepted the termination conditions. The 1st to 10th Respondents had essentially waived their right to challenge the termination process. He consequently dismissed their claims.

The 1st to 10th Respondents were aggrieved and noted an appeal before this court. Their main basis of appeal was that the Arbitrator had erred and misdirected himself in finding that they had accepted they had accepted the offer freely and willingly; in finding that they had consequently waived their rights when such had not been proved by the applicant before him; in arriving at an inconsistent position that the termination was lawful whilst at the same time finding that the procedure taken was in violation of the provisions of the law; the arbitrator had therefore improperly given effect to an illegal agreement; that he had also misdirected himself in fact and law by finding that an acknowledgement of receipt of the termination agreement amounted to an acceptance of the offer.

After considering the submissions by the parties and evidence in the record of proceedings this court came to the conclusion that the Arbitrator had erred and misdirected himself on the facts as to amount to a misdirection in law when he found that the 1st to 10th Respondents had accepted the Applicant’s offer of the retrenchment packages. The facts and evidence showed the 1st to 10th Respondents had to first acknowledge receipt of the letter carrying the termination agreement. It was not clear whether the signatures appended to the letter in some of the cases were in acknowledgment of receipt of the letter or in acceptance of the retrenchment packages offered. It was also clear that in some instances the Respondents had made counter offers e.g. for the statutory minimum 3 months’ notice pay, instead of the one and half months’ notice pay offered by the Applicant to them. It was clear based on the facts that in the absence of an agreement being reached on the issue of notice-pay the Applicant had gone ahead and simply deposited the retrenchment packages into their bank accounts. The court’s view was that in the circumstances the Arbitrator clearly erred in reaching a conclusion that the 1st to 10th Respondents had freely and willingly accepted the retrenchment packages. It was also the court’s finding that the circumstances did not point to a waiver of rights by the 1st to 10th Respondents.

The court also agreed with the 1st to 10th Respondents position that the Arbitrator had presented an inconsistent position by in one breath upholding the termination as lawful whilst at the same time acknowledging that the retrenchment process was not strictly in terms of the law. The court’s view was that the purported termination agreement being clearly tainted with illegality it could not make for a valid retrenchment process. It was on this basis the court concluded that there had been an unlawful termination. The court directed the setting aside of the arbitral award, reinstatement of the 1st to 10th Respondents or in the alternative payment of damages in lieu of reinstatement.

WHETHER THE INTENDED NOTICE OF APPEAL RAISES QUESTIONS OF LAW

An appeal from this court to the Supreme court must be based on a question of law. What constituted a question of law has been discussed in a plethora of judgements including the celebrated case of Muzuva vs United Bottlers (pvt) ltd 1994 (1) ZLR 217(S).

The Applicant has raised several intended grounds of appeal. There is no doubt that the main issue is whether or not this court erred and misdirected itself in finding that there had been no waiver by the 1st to 10th Respondents of their right to challenge the retrenchment process undertaken to terminate their employment contracts. The Applicant has submitted that it wants the Supreme Court to determine on the issue of waiver. The issue of what constitutes waiver has already been determined by the Supreme Court in several authorities. What I believe to be the issue that the Supreme Court ought to address however is whether there is a valid waiver of rights in circumstances where the employer party actions are designed to undermine clear provisions of the law. Is termination in such circumstances lawful? There is no doubt the first intended ground is on a point of law.

Under the intended 2nd ground of appeal, the applicant in tends to attack this court’s judgment on the basis that the court failed to find that the retrenchment package paid formed part of the damages in the event of the retrenchment process being set aside. The intended ground clearly does not raise a question of law and in any event it is referring to the issue of damages that were not pleaded to or even argued before this court.

WHETHER THE APPEAL HAS PROSPECTS OF SUCCESS.

To the extent that I believe the Applicant has raised an arguable point under the first intended ground, the intended appeal therefore carries reasonable prospects of success.

DISPOSITION

It is the court’s finding that there is merit in the application for leave to appeal. The Applicant has made a good case for the relief as prayed.

In the result it be and is hereby ordered as follows:

Leave to note and appeal against the judgement of this court delivered 4th December, 2020 under reference LC/H/296/20 be and is hereby granted.

The applicant shall file its notice of appeal within ten (10) days of the date of this order.

There is no order as to cost.