Munamato BEN Shava Vs. Bulawayo Mining Company (Pvt) Ltd.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/2/25
HARARE, 14 SEPTEMBER & 20 OCTOBER, 2022
CASE NO. LC/H/131/22
AND 2nd JANUARY, 2025
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IN THE LABOUR COURT OF ZIMBABWE		JUDGEMENT NO. LC/H/2/25 HARARE, 14 SEPTEMBER & 20 OCTOBER, 2022	CASE NO. LC/H/131/22

AND 2nd JANUARY, 2025

In the matter between: -

MUNAMATO BEN SHAVA	APPLICANT VS.

BULAWAYO MINING COMPANY (PVT) LTD.	RESPONDENT

Before the Honourable B.T Chivizhe: Judge

For Applicant:	Ms C. Mahlangu

For Respondent:	Mr G. Gapu

CHIVIZHE, J:

The delay in the hand down of the judgment is sincerely regretted.

The application before the court is an application for review of the decision taken by the Respondent on 2nd February, 2022 to terminate the Applicant’s contract of employment in terms of Section 12C of the Labour Act [Cap 28:01]. The application is premised on Section 92 EE(1) of the Labour Act [Cap 28:01] as read with Rule 20 of the Labour Court, Rules 2017.

The material background facts to the matter are as follows. The Applicant was employed by the Respondent as the Finance Controller (Head of Finance). He was employed on the basis of a contract without limit of time on 1st July, 2020. He submits that on 18th of November, 2021 he was verbally advised by the Human Resources Manager that his contract of employment had been terminated forthwith and that he should not report for work. The Respondent was to follow up with official written communication on the 22nd of November, 2021.

1

The Applicant submits that it was only on the 26th of November, 2021 that the Respondent handed to him a document entitled “Mutual Termination of Employment Agreement” which he was requested to sign. Applicant submits that he refused to sign the document and instead instructed his lawyers to challenge the decision taken to terminate his contract of employment. The Respondent having obtained legal advice, retreated from that process. The Respondent then proposed for mutual termination negotiations on a without prejudice basis. The parties however failed to reach agreement. On 28th January, 2022 his lawyers wrote to Respondent requesting the date of resumption of duty following the unsuccessful negotiations. On 3rd February, 2022 Respondent responded by giving him a notice of termination of employment in terms of Section 12C of the Labour Act [Cap 28:01]. The letter also advised that a notice of retrenchment had been simultaneously referred to the Work Council and the Retrenchment Board. Copies of the letters so served were made available to his lawyers on the 7th of February, 2022.

The Applicant submits that the Respondent therefore unlawfully terminated his employment before issuing the requisite notice of intention to retrench with reasons to the Retrenchment Board. The Respondent had therefore put the cart before the horse. This was in clear violation of Section 12C(1) of the Labour Act [Cap 28:01]. The Applicant further submits that he was also never informed and consulted in regards any major charges that were likely to entail termination of his employment through retrenchment. This was also in violation of Section 12D(1) of the Labour Act [Cap 28:01].

The Applicant submits as a last point, that the Respondent was also obliged to implement measures to avoid retrenchment as provided under Section 12D(2) of the Labour Act [Cap 28:01]. As this section was not complied with this renders the process irregular.

It is on this basis the Applicant is seeking review of the Respondent’s decision to terminate his employment on the 3rd of February, 2022. The Applicant seeks a review on the basis of the following grounds;

Malice in that;

The Respondent spitefully and maliciously terminated Applicant's contract; verbally and summarily at first and, after his rejection of mutual settlement package, through a botched retrenchment process;

Applicant was directed to surrender a motor vehicle which is part of his contractual benefits even when he had been advised that his full benefits were available to him during his notice period.

Gross irregularity in the proceedings and the decision made in that;

The Respondent terminated Applicant's contract of employment purportedly in terms of section 12C of the Labour Act without following the full retrenchment procedure in that;

There was no preceding Notice of intention to retrench with reasons thereto to the Retrenchment Board as provided for in section 12C (1) of the Labour Act.

The Respondent did not inform and consult the Applicant on any major changes that were likely to entail termination of his contract of employment through retrenchment in a clear violation of section 12D(1) of the Labour Act.

2.1.3. The retrenchment was also not preceded with any measures to avoid retrenchment as provided for under section 12D (2) of the Labour Act.

In relief the Applicant prays that should this court find his application to have merit the court shall grant an order as follows;

The Application for review be and is hereby granted.

The decision of the Respondent dated 2nd February 2022 terminating
Applicant's contract of employment in terms of section 12C of the Labour Act and any subsequent proceedings pursuant to that letter be and is hereby set aside.

The Applicant be and is hereby reinstated back to his position without any loss of salary and benefits with effect from the date of the unlawful termination of his contract of employment. If reinstatement is no longer tenable, Respondent to pay damages for loss of employment to be agreed to by the parties, failing which to be determined by this court on application.

Respondents to pay costs of suit on a higher scale of legal practitioner and client.

The Respondent is opposed to the granting of the application. Through the Opposing Affidavit the Respondent contends that the application is speculative and devoid of merit. The Respondent submits that Applicant was employed as a Finance Controller, a senior managerial position. The Respondent submits that Applicant was advised on 18th of November 2021 that the company being in the process of a restructuring exercise, his position had become redundant in the organisation. His duties were to be done by his subordinates. He was further advised that the company intended to enter a mutual agreement with him for the termination of the contract. The parties had further discussed the terms of such termination and a written contract would then be drawn up for signature by both parties.

The parties had further agreed that there would be no need for Applicant to report for work pending the signing of the agreement. The Respondent contends that the Applicant had even requested permission to continue to use the company motor vehicle up to 30th of November, 2021 which request was granted. The Respondent’s submission is a letter reflecting

the agreement reached was written on 18th of November, 2021 (a copy of the letter attached to Respondent’s papers as Annexure “1”).

The Respondent further submits that the Applicant had however refused to sign the agreement, clearly reneging on the verbal agreement reached between the parties. The Respondent denies the submission that it retreated from an unlawful termination. The Respondent submits that negotiations with Applicant had however faltered due to Applicant excessive and unreasonable demands. The Respondent then wrote a letter on 3rd February 2022 advising Applicant of its intention to terminate on basis of Section 12 C of the Labour Act [Cap 28:01].

The Applicant had also in the same letter been advised that notice was being sent to both the Retrenchment Board and the Works Council. The notices were indeed served on the Works Council and the National Employment Council on 2nd and 3rd February 2022 respectively as reflected in Annexure “1” to Respondent’s papers.

The Respondent contends however it was unable to serve the Notice on the Retrenchment Board in Bulawayo as they were advised that whilst the Bulawayo office could receive the papers, they however would not be in a position to stamp them. This was due to the fact that this was normally done in Harare. The Respondent submits that a copy of the notice was however left at that office and the rest of the papers were dispatched to Harare. The notice was duly delivered to the Retrenchment Board on 7th February, 2022. The Respondent contends that in any event, it is the position of the law that where a Works Council has been served with the notice the employer is required to merely send a copy of the notice to the Retrenchment Board.

On this basis it is Respondent’s contention that it fully complied with the law. The Works Council then sat on 2nd and 3rd February, 2022 and approved the retrenchment. The copies of the minutes are attached as Annexures “J1”and “J2” respectively to Respondent’s papers. The Respondent contends a letter sent to Applicant inviting him to make representing regarding retrenchment went unresponded to. On 10th February, 2022 the Respondent legal practitioners wrote to Applicant’s legal practitioners confirming the Applicant’s retrenchment (Annexure “K” to Respondent’s papers).

The Respondent denies that Applicant was not aware of the restructuring exercise. It is contended that Applicant knew of the exercise as from the 1st of November, 2021. This position is confirmed by letters authored by his legal practitioners on 13th of December 2021 (copy attached as Annexure “K1”). Letters were also written on 30th of November 2021 and 6th

December, 2021 in which Applicant had been advised of the restructuring process (Annexures “L” and “M” respectively).

The Respondent also contends that the implementation of measures to avoid retrenchment as provided under the Act are not applicable to a senior management position such as the one occupied by the Applicant. The measures only apply to shop floor level staff. The Respondent also denies having acted with malice as suggested by Applicant . It is contended that it had even continued to pay Applicant’s salary and benefits since November 2021 whilst Applicant was sitting at home.

The Respondent also disputes having acted unlawfully. The submission is made that Applicant having refused to sign the mutual termination agreement the Respondent then abandoned the process and commenced the formal retrenchment process. Respondent contends it acted lawfully at all times. The Respondent believes Applicant may have misread section 12C (1) of the Labour Act [Cap 28:01] as that section does not require prior notice to be given to the Retrenchment Board. The law only requires that prior notice should be given to the Works Council and a copy of the notice should then be sent to the Retrenchment Board which is what happened in casu.

PRELIMINARY POINT

On the date of hearing the Respondent took a point in limine which had also been raised in its supplementary heads of argument. The point was that the Applicant having been paid and utilised the retrenchment package following his retrenchment in February 2022 he automatically waived any right to challenge the retrenchment process. The matter had accordingly become moot.

It was the Respondent’s further submission that the Applicant’s explanation that he did not know that the funds he received were part of the retrenchment package, clearly had to be dismissed. This was manifestly clear as Applicant had proceeded to institute proceedings against the same retrenchment process. There was also no basis for the Respondent to have been making any other payments to Applicant except the retrenchment package. This was in view of the notice period having expired on 30th April, 2022. The Respondent submitted that the Applicant conduct was consistent with him having accepted retrenchment.

The Respondent placed reliance on the authority of Lyton Shumba vs. Commercial Bank of Zimbabwe HH 100/2006 where the High Court held that by accepting the agreed packaged the employee had evinced an intention to abandon his rights as against his former employer. The Respondent also relied on Chidziva & Others vs. ZISCO Limited 1997 (2)

ZLR 368 (s) where it was held that a waiver of rights can be effected expressly or may be implied by conduct.

The Respondent finally submitted that it would not be proper for Applicant to seek to refund the funds he had already received and utilised. The court was also urged to note that the funds had not been returned as at the 28th June, 2022 when Respondent had indicated to the Applicant its intention to raise the issue of mootness. The court had to also dismiss the attempt by Applicant to now tender the money back. That was tantamount to Applicant seeking to close the stable doors after the horse has already bolted. The matter had clearly become academic and the court was urged to decline to hear the matter. The Respondent referred to authorities where the test of mootness was discussed i.e. Khupe & Ors vs. Parliament of Zimbabwe CCZ 20/19; Chombo vs. Clerk of Court, Harare Magistrates Court (Rotten Row) & Others CCZ 12/20; Homelink Pvt Limited vs. Maputseni SC 4/22; Beatrice Mtetwa vs. Judicial Service Commission and Anor. HMA 18/22. On this basis the Respondent’s prayer was for the point in limine to be upheld and the application for review to be dismissed with costs.

The Applicant was opposed to the point in limine. Through the Supplementary Opposing Affidavit filed he submitted that although he was served with a purported retrenchment notice dated 2nd February, 2022, he immediately advised Respondent of his rejection of the retrenchment package. The Applicant further submits that whilst through letters of 2nd February, 2022 and 10th February, 2022, the Respondent had undertaken to pay the specified package as soon as possible it had not done so. Instead the Respondent had continued to pay him his monthly salaries/benefits as at the end of every month. He did not receive a once-off payment. He also retained the motor vehicle issued to him in terms of his contract of employment. Applicant submitted that at no point was he advised that the payments were for retrenchment package. He also did not sign any document in receipt of the retrenchment package. His receipt of the salary amounts tendered could therefore not be viewed as constituting waiver of his rights. He further submits that when he received the amount of US$3 140.00, he believed he was receiving production bonus which he normally received now and again. There was no written document showing otherwise which he had been made to sign. He could not have known therefore that the funds were the retrenchment package. There had also been no proper computation of what he was entitled to as retrenchment package. The Applicant completely denied being aware that the money received and signed for in June was part of his retrenchment package. He submits it was only in June, after he had phoned the Human

Resources Manager who then advised him that the funds were for the retrenchment package. This was the first time he became aware of the funds being part of the retrenchment package.

The Applicant also submitted that he had not utilised the US$3 140.00 referred to him and he was tendering it back. The Applicant also admittted to receiving ZWL$728 802.19 during the first week of July 2022. He indicated that he had deposited it back to sender (proof attached to his papers).The Applicant’s prayer was for dismissal of point in limine as being unmerited. He maintained that he intended to challenge the flawed retrenchment process, he had not in any way conducted himself to imply a waiver of his rights.

After considering the submissions, both oral and written, the court handed down an order dismissing the point in limine and directing a reset of the matter for a hearing on the merits. There was only one reason for the dismissal of the point in limine as taken. The applicable test as to whether or not a matter is moot is well settled in our jurisdiction. In Thokozani Kupe and another v Parliament of Zimbabwe and others CCZ 2019 to which the court was aptly referred by the Respondent Counsel the Constitutional Court stated as follows;

“The court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminates the controversy. The

position of the law is that if the dispute becomes academic by reason of change…….the court’s jurisdiction ceases, and the case becomes moot. The question of mootness is an important issue that the court must take into account when faced with the dispute between the parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute as between the parties.”

In dismissing the point in limine in the present matter the court noted that there was still a live dispute between the parties as to whether the Respondent had followed the law in effecting the retrenchment. The situation was compounded by the fact that Respondent had transferred funds to the Applicant without any explanation as to the purpose of the funds. The Respondent had failed to place before the court the communication showing the total retrenchment package as well as the Applicant’s acknowledgement of receipt of the total package.

MERITS.

The Applicant raised two main grounds of review as referred to above. The court proceeds to determine those two main grounds seriatim.

MALICE

The Applicant submitted that the Respondent had acted with malice in the way that it retrenched him. The Applicant submitted that he was spitefully, maliciously and verbally dismissed after he rejected the first attempt by the Respondent to terminate his employment. The termination was malicious in that there was a total disregard of the laws governing retrenchment processes in terms of the Labour Act, Chapter , Chapter 28:01 (the Act) .

The Applicant submitted that malice was also attributed to the letter dated 14th February, 2022 in which the Respondent demanded that he should return the motor vehicle he was using. The said motor vehicle was after all an employment benefit which he was entitled to.

In response, the Respondent submitted that there was no malice in the way the contract of employment was terminated. The Respondent had followed due process in retrenching the Appellant. On the issue of the motor vehicle it was Respondent position that the Applicant had requested to use the vehicle up to 30 November 2021, which request was granted by the Respondent. The motor vehicle, contrary to Applicant’s submission was not an entitlement.

The court is of the view that the ground clearly lacks merit. The reasoning of the court is that when one alleges malice, he is supposed to prove how the other party acted with malicious intent. It is after all trite in our jurisdiction that he who alleges must prove.

It is clear that the Applicant has failed in this case to tender evidence in support of his allegations that there was malice in the manner in which he was retrenched. Reference is made to the case of Ex-Constable Matseketsa v The Commissioner General of Police & Anor HH-79-18.

From the submissions by the Respondent Appellant position had become redundant, the parties attempted mutual termination which clearly failed. The Respondent then opted to take retrenchment route. There was in the court’s view nothing untoward or improper in the Respondent seeking to initially terminate by mutual consent. The Applicant’s claim that he was being punished for refusing mutual termination has not been substantiated.

With regards the motor vehicle the facts show that the Applicant did request to use the motor vehicle up to 30th November, 2021 and the request was granted. This position was captured in the letter authored by the Responden. The facts also show that the Respondent thereafter requested for the motor vehicle in February 2022 after the retrenchment had been effected. There was clearly no malice on the part of the Respondent in requesting for the motor vehicle as at that stage.

In the result the ground has no merit and is accordingly dismissed.

GROSS IRREGULARITIES IN THE PROCEEDINGS

Whether the proceedings complied with section 12 (D) 1

Applicant submitted that the process taken by the Respondent did not comply with

section 12(D) 1 of the Labour Act. Section 12 (D) 1 of the labour Act provides as follows:

“Every employer shall ensue that, at the earliest possible opportunity his employees are kept informed of and consulted in regard to any major changes in the production, programs, organization or technology that are likely to entail the retrenchment of any group of five or more employees in the six-month period.” (Emphasis added)

The Applicant submitted that section 12 (D) 1 raises two issues that the employer is obliged to follow which is the duty to inform and the duty to consult the employee. It is submitted that the Respondent did not make an official statement/ communication to the Applicant informing him of the intention to retrench.

Applicant was only verbally warned that his contract of employment was terminated on 19 November 2021. Applicant submitted that the contract of employment was summarily terminated without proper due process as envisaged by the Act. The Applicant further submitted that the second duty to consult was never complied with in that no formal engagements between Respondent and Applicant were conducted. It is the Applicant’s argument that Respondent unilaterally informed him of the retrenchment without first consulting him.

In response to this the Respondent submitted that on the basis of section 12D(1) two issues arise. There must be major changes in the specified areas. Secondly the major changes must be such as are likely to result in retrenchment of “employees”. The Respondent submission was that in this case there were no “major changes” in production, programmes organization or technology which occurred resulting in the retrenchment of the Applicant. It simply restructured its organization in order to improve efficiency. The Applicant’s position had resultantly become redundant.

The Respondent further submitted that section 12(D) 1 was not applicable given the circumstances in casu as the section relates only to “employees” and not a single employee. The clear intention by the Legislature was that the section would not apply in the case of a single employee. The Legislature was seeking to protect employees against unfavorable major

changes in an organization. The Respondent submission was that in this case the restructuring of Applicant duties in the Respondent organization was not a major change it did not affect many employees but simply made only the Applicant’s position redundant.

The court agrees entirely with the interpretation by the Respondent of section 12 (D) 1 as only applying in instances where there are several “employees” involved and not a single “employee.” In interpreting the provision the Respondent applied the golden rule of interpretation which was referred to in the matter of Zambezi Gas Zimbabwe Private Limited v N.R Barber Private Limited & Anor SC 3/20, in which the court stated as follows:

“It is the duty of a court to interpret statutes. Where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning.”

The court finds therefore that the provision in section 12 (D) 1 did not apply in this case as there was only one employee involved and there were no major changes in the organization. The current case simply involved a situation where the Applicant’s post became redundant due to a redeployment of tasks which ultimately led to the Applicant’s retrenchment.

Assuming the court is wrong in the conclusion reached above it is in any event apparent to the court that the Respondent substantially complied with the requirements of the Act. The Respondent from the record did inform the Applicant of the restructuring exercise in November 2021. The Applicant has not disputed that position. In Annexure “C” his legal practitioners of the record wrote as follows:

“He further instructs us that on the 18th November, 2021 you verbally advised him that the company was restructuring rendering his position redundant”

It is clear that after being advised of the restructuring, the parties attempted to mutually settle but this failed. The Applicant had also been advised through the Respondent letter of 30th November, 2021 of the possibility of the matter proceeding to retrenchment. It is clear that indeed the Applicant having been informed was aware of the position.

The Applicant further submitted however that he had not been consulted. The Respondent has counter argued that in the event that the court finds there was no consultation there is no provision made for a sanction to a party who does not so comply with that requirement. This appears to be a clear concession on the Respondent party that there was indeed no consultation in this case. The concession is properly made as the letter referred to of the 30th of November, 2021 clearly made no mention of retrenchment as the method for mutual termination of contract. The Respondent has however urged the court to take the approach as

taken in Chemco Holdings (Private) Limited vs Tendere and Others SC14/2017 not to nullify the retrenchment process that has already taken place. It is indeed correct as submitted by the Respondent that section 12(D) 1 of the Act imposes no sanction for non-compliance with the provision. In light of this position the court is persuaded to take a similar approach in this case as taken in Chemco Holdings referred to supra. This is in view of the position that there was substantial compliance in this case with section 12(C)1 which is the other provision that the Applicant claims the Respondent breached in the retrenchment process. I turn to address that very point.

Whether there was compliance with section 12(C) 1

The Applicant under this heading alleged that the retrenchment was irregular because it was not preceded by a notice to retrench being sent to the Retrenchment Board. He further contended that it was improper to give notice to the Works Council or Employment Council.

The first argument clearly cannot be sustained. The record of proceedings as submitted by the Respondent indicates that the notice was indeed sent to the Works Council and the Retrenchment Board firstly to the Bulawayo office on 4th February, 2022 and then to their Harare offices on 7th February,2022. The facts indeed reveal that the Retrenchment Board was notified. The argument by the Applicant that the notice should have been sent to the Retrenchment Board first is really of no moment as at the material time the Retrenchment Board no longer had jurisdiction to approve retrenchment or a retrenchment package. The notice to that board was purely for notification purposes. This new regime as contended by the Respondent was introduced by Act no. 5 of 2015.

With regards to the second point the Applicant appeared to be arguing that it was improper to refer to Works Council as he was a managerial employee. The Respondent did not agree and submitted that there was no law which prohibited the Works Council from addressing the retrenchment of a managerial employee. It behoves the court to consider the section 12(C)1 in detail. The section at the material time provided as follows:

An employer who wishes to retrench any one or more employees shall—

give written notice of his or her intention—

to the works council established for the undertaking; or

if there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or

if there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and in such event any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to

the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf; and

provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and

send a copy of the notice to the Retrenchment Board.

It is clear by adopting the golden rule of statutory interpretation that section 12(C) 1 makes no distinction between managerial and non-managerial employees as to who should receive notice of intention to retrench. It is also apparent on the basis of section 25A(2) referred by the Respondent that the Works Council in this case was composed of managerial as well as non-managerial employees. The Applicant’s interests were therefore clearly catered for. The ground clearly lacks merit.

Whether there was compliance with section 12(D)2

The Applicant also challenged the retrenchment process on the basis that there were no measures adopted to avoid retrenchment as provided in section 12(D)(2) of the Labour Act. In referring to previous decisions such as Stanbic vs Charamba Supreme Court 77/05 Applicant emphasized on the need for strict compliance with retrenchment provisions by the employers otherwise they will be declared a nullity. The Respondent submission on this point was that Section 12(D)2 did not impose a mandatory obligation on the employer to implement such measures, neither did the law compel the parties to agree on such measures to avoid retrenchment. The Respondent further submitted that in this case it was not possible to institute shifts or introduce short time work for Applicant who was occupying a head of department position. The Respondent lastly contended that the Applicant never raised the issue with the employer, he also did not raise it at Works Council during deliberations. Section 12(D)2 provided as follows:

Subject to this section, before giving notice of the intention to retrench any employees in terms of section twelve C, an employer may agree with the employees concerned, or with any workers 17 committee or works council which represents the employees, to have recourse to either or both of the following measures for a period not exceeding twelve months—

subject to subsection (4), placing the employees on short-time work; or

instituting a system of shifts as provided in subsection (5).

The court’s finding is that the provision clearly does not require strict compliance. This is clear from the use of the word “may”. It is a trite position at law that the use of “may” is merely

directory. The court was aptly referred by Respondent to Air Duct Fabricators (Private) Limited vs A. M. Machado and Sons (Private) Limited HH54/2016. The Applicant also failed to counter the submission made that it was practically impossible to impose those measures in his case as the measures were normally utilized where a large work force is involved and the employees can then alternate. In this case it was only him involved. On this basis the court found that section 12(D)2 was not breached by the Respondent.

In light of the above, the court is of the view that there were no gross irregularities in the retrenchment proceedings undertaken by the Respondent. The application for review is consequently dismissed with costs.