Kiliana Bangure v Minister of Labour & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/176/16
HELD AT HARARE 7 MARCH 2016
CASE NO
JUDGMENT NO LC/H/176/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/176/16

HELD AT HARARE 7 MARCH 2016				CASE NO LC/H/REV/17/15

& 18 MARCH 2016

KILIANA BANGURE						Applicant

MINISTER OF LABOUR					1st Respondent

ZB FINANCIAL HOLDINGS LTD				2nd Respondent

Before The Honourable G Musariri, Judge

For Applicant			Mr S Banda, Attorney

For 2nd Respondent		Ms N Moyo, Attorney

MUSARIRI, J:

On record is a letter by 1st respondent’s Secretary (Minister) in terms of which she approved applicant’s (employee) retrenchment by 2nd respondent (employer) subject to certain terms and conditions. This was after the employer and employee deadlocked during their negotiations over the retrenchment package.  Amongst the terms and conditions set by the Minister was that the employer would pay the employee service pay at the rate of 1 ½ months pay per each year of service.  The employee was aggrieved by that condition.  Accordingly she filed the present application for review of the Minister’s determination.

Applicant’s case is concisely set out in her heads of argument thus,

“It is respectfully submitted that the 1st respondent’s determination is prima facie liable to be impugned on review by reason of its manifest arbitrariness.  Indeed where the 2nd respondent had demonstrated its willingness and ability to pay the applicant two (2) months salary for every year worked and applicant had moved for six (6) months, it can only be out of gross arbitrariness and or malice that the 1st respondent came to a determination which is virtually foreign to the submissions of the parties.  Seized with two variants, he ought to have settled for one and not none at all without even giving reasons for such an approach.”

The position was elaborated in oral argument.  It was argued that the Minister ought to have chosen either the employee’s or the employer’s position.  Alternatively she should have taken a position somewhere in-between the parties’ positions.  In other words she should have awarded anything between 2 months’ and 6 months’ salary per each year served.  The 1 ½ months awarded was outside and less than the parties positions and thus was arbitrary and capricions.

The employer’s position was succinctly captured in its heads of argument as follows,

“5.  There certainly was no arbitrariness on the part of the Minister.  The award was made after a full hearing before the Retrenchment Board.  Both parties appeared and made their submissions before the board.  At the hearing, applicant was claiming a retrenchment package of 6 months pay for every year worked, while 2nd respondent offered one month’s pay for every	 year worked.  Both parties justified their positions.  Applicant relied on her seniority, her position and her expectations in justifying her claims, while the employer relied on the fact that its offer was commensurate with the packages it had paid to the other manages of similar seniority that it retrenched in the same process.  After considering both parties submissions, the Minister awarded one and a half months’ pay for every year worked, which was more than the employer’s offer.  That award was clearly not arbitrary.”

The employer’s position is corroborated by the reference to the retrenchment board Form LRR3 and minutes of the parties’ negotiations.  The documents are filed of record.  Both documents show that the employer’s final position was on offer of one month’s salary per year served.  That is the position that was put to the Minister.  Thus the Minister’s determination of 1 ½ months’ pay was more and not less than what the employer offered.  Accordingly the basis upon which the determination was impugned lacked firm foundation.  In any case it is not the business of the courts to willy-nilly interfere with retrenchment packages set by the Minister.  I am fortified in this view by the case of Mashave v ZUPCO 2000 (1) ZLR 478 (S) where MCNALLY JA  (as he then was)at p 483 E-F stated that,

“Retrenchment is a tragic fate in times like the present when alternative jobs are hard to come by.  But it is not the function of this court to decide what the appropriate level of compensation is.  The machinery for so deciding has been established.  So long as it functions correctly, and comes to a conclusion which is not wildly unreasonable, the courts cannot interfere.”

In the circumstances I consider the application as abortive and it needs be dismissed.

Wherefore it is ordered that

The application for review is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E