Hellen Musere v Leopard Rock Hotel and Media Kasena and 35 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/213/2023
HARARE, 26 JUNE 2023
CASE NO LC/H/APP/542/17
14 JULY 2023
HELLEN MUSERE
APPLICANT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

HARARE, 26 JUNE 2023
14 JULY 2023

JUDGMENT NO LC/H/213/2023

CASE NO LC/H/APP/542/17

HELLEN MUSERE

LEOPARD ROCK HOTEL

MEDIA KASENA AND 35 OTHERS

Before the Honourable G. Musariri Judge:

For Applicant    Ms H. Musere, Applicant
For 2nd Respondent    Mr C. Mucheche, Attorney
For 2nd-37th Respondent    Ms DE. Masango, Unionist

MUSARIRI, J:

On the 10th July 2017 at Mutare, applicant in her capacity as a Designated Agent issued a ruling. She ordered 1st respondent (employer) to “restart the (retrenchment) process afresh.” The 2nd to 37th respondents were the employees who had been retrenched. Apparently, the employer did not comply with the ruling. Applicant then applied to this Court for the confirmation of her ruling in terms of section 93(5a) of the Labour Act Chapter 28:01, hereafter called the Act.

At the onset of oral argument in this Court the employer raised 2 points in limine which are dealt with thus;

1. That the Designated Agent cannot issue both a draft ruling and a determination. During the course of oral argument, the employer abandoned this point. Accordingly, nothing further needs be said about the point.

2. That the application was not accompanied by the correct ruling:

   Applicant stated that she attached a working draft to the application instead of the stamped order which had been served on the employer. The employer argued that the erroneous attachment renders the application fatally defective. I note that both the stamped and unstamped copies of the ruling say the same thing in slightly different words. They both nullify the retrenchment of the employees by the employer. The employer did not plead or prove any prejudice to it arising from the error. On that basis I consider the error to be a technicality which can be discounted.

See **Mapondera v Freda Rebecca SC 981/22** (Paragraph 24).

The ratio decidendi: of applicant’s ruling is captured in her ruling under the subtitle “Analysis of evidence” as follows:

“The issue to be considered and determined first is whether or not the respondent gave the appellants notices of termination through retrenchment whilst they were on leave. It is common cause that notices were given on the 5th July 2016. This was before the resolution of the dispute of being placed on forced leave which was finalised by agreement of the parties on the 20th of July 2016. It therefore follows that the notices issued while the appellants were on leave. This renders the process procedurally and substantively unfair and illegal as argued by the appellants. By giving notice whilst the appellants were on leave, the respondent violated the provisions of clause 17(8) of Statutory Instrument 167 of 1991. I therefore concur with the appellants’ submission that it was illegal for the respondent to give notices to appellants while they were on leave as provided for by the collective bargaining agreement.”

In this Court the employer challenged the applicant’s reasoning in its Response thus,

“18. As stated above the employees were at work when the notice to retrench was issued. In any event, the applicant determined that the notice was given when employees were on forced unpaid leave. Assuming this position is correct, it is submitted that the provisions of SI 167/91 would not apply to those facts. This is so because section 17(8) is very specific that it prohibits giving of notice to terminate contract to an employee who “is absent on paid sick leave and vacation leave.”

19. The provision does not prohibit giving of notice of termination on employee who is absent on unpaid forced leave.

20. Applicant had no jurisdiction to review the decision of the exemption committee on the exemption matter. A party aggrieved by the decision of the exemption committee will not appeal to the designated Agent. The issue of exemption had already been determined by another authority. In any event the 14 days are counted from the date of receipt not the date investigations are conducted. The application was received by the NEC on 22 September 2016, the determination was issued on 27 October 2016, more than 25 working days had lapsed.”

I am persuaded by the employer’s argument that notice of retrenchment could be validly served upon employees on unpaid forced leave. The prohibition in the Collective Bargaining Agreement (CBA) SI 167/91 applies to employees either on sick or vacation leave. It does not extend to forced leave pending retrenchment. On that basis the rationale for applicant’s ruling cannot stand, thus her ruling cannot be confirmed.


However, that is not the end of the story. In the retrenchment notices dated 5th July 2016 the employer spoke about seeking exemption from paying the minimum retrenchment package. Apparently, the employer did nothing about the “exemption” until the 22nd September 2016 when its attorney wrote to the NEC for the Catering Industry applying for the exemption. Thus when the retrenchment notice took effect the employer had not obtained the desired exemption.

Section 12C (2) of the Act requires that the minimum retrenchment package be paid “…no later than date when notice of termination of employment takes effect.”

According to the employer’s notice the retrenchment took effect on the 4th October 2016. By that date the minimum retrenchment package was due. The employer talks of a decision made by the exemption committee much later on the 27th October 2016. In any case the employees stated that the committee refused to grant the exemption. None of the parties filed a copy of the decisions. However, I consider that the decision amounts to red herring because on the effective date of retrenchment the exemption had not been granted. On that basis the employer is obliged to pay the employees the minimum retrenchment package which fell due when their retrenchment became effective. Therefore, the matter shall be remitted to applicant to quantify the minimum package due to each employee.

WHEREFORE IT IS ORDERED THAT

1. The ruling issued by applicant on the 17th July 2017 is set aside; and

2. The matter is remitted back to applicant for quantification of the minimum retrenchment package due to each of the 2nd to 37th respondents.

G MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---