Patience Muserapwa & 4 Others v International Committee of the Red Cross

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/474/14
HELD AT HARARE 8TH JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/474/14

HELD AT HARARE 8TH JULY 2014			CASE NO LC/H/55/14

& 1ST AUGUST 2014

PATIENCE MUSERAPWA				1st Appellant

SIMON MASANGO					2nd Appellant

LUCIA CHARUKA					3rd Appellant

CLAUDIUS CHIMUKA				4th Appellant

ROMEO MUPAZVIRIWO				5th Appellant

INTERNATIONAL COMMITTEE			Respondent

OF THE RED CROSS

Before The Honourable G Musariri, Judge

For Appellants		Mr A Chambati, Attorney

For Respondent		Mr G Makings, Attorney

MUSARIRI, G:

On 20 January 2014 at Harare, the Honourable E Maganyani made an arbitration award.  In terms thereof he dismissed appellant’s claims of unlawful termination of their employment contracts by respondent.  Appellants then appealed to this Court.  Respondent opposed the appeal.  At the onset of oral argument, appellants abandoned their argument that the Notice of Response was defective.  They then focused on their main argument.  It was based on the provisions of the Labour (National Employment Code of Conduct) Regulations S.I. 15/06 (hereafter called the Code).  Section 5 (c) of the code provides that,

“No employer shall terminate a contract of employment with an employee unless-

(c) the employer and employee mutually agree in writing to the termination of the contract.”

Appellants submitted that respondent intended to downsize its workforce.  It came up with a forced retrenchment disguised as a mutual termination. Letters were sent which appellants signed.  Respondent then paid certain amounts of money which they accepted.  Nonetheless appellants argued that their termination in these circumstances failed to comply with the aforesaid provisions of the code.  On that basis they prayed for a reversal of the arbitration award.

On the other hand respondent argued that the terminations were lawful.  I must say at once that I agree with respondent.  A sample of the notice of termination is filed of record.  It is dated 28 June 2012 and addressed to D Toronga.  The relevant part read as follows;

“Following the meeting held between yourself and the Administrator in her office on 28 June 2012, we hereby confirm that your employment contract with ICRC will end on the 31 October 2012 and the notice period is effective from the 1 August 2012.  You will stop working on the 31 July 2012 and you will be paid 3 months notice period in advance.

As agreed, your end of service package will be paid at the end of July 2012 and the breakdown is as follows;

….”

At the bottom the letter is signed next to the word “Received.”  It was signed by Toronga.  In addition there is a Declaration of Final Payment filed of record.  The one dated 25 July 2012 was signed by C. Chimuka.  It declared that,

“I hereby declare that I accept the payment herein in full and final settlement of all or any claims which I may have against ICRC or any of its officers, employees whether at common law or arising out of Zimbabwe labour law or otherwise, however arising in connection with my employment including its termination.”

It is common cause that all appellants received and signed the 2 documents set out above.

In my view the documents record a mutual agreement between employer and employee to terminate the employment contract.  The first document may not have fully shown the employee’s consent.  The second document however admits of no doubt.  It is clear that the employee agreed to take his terminal benefits as quid pro quo for the termination of the contract.  It does not matter that the termination was initiated by the employer.  In any event it is unlikely that both parties would first think of termination at the same time.  What matters is that both parties should agree.  It is also unnecessary for the agreement to appear in one document.  It can be recorded in several documents as happened in casu.

Alternatively, in the unlikely event that it is found that the terminations were unlawful, the issue of waiver comes in.  The wording of the 2nd document (Declaration) is explicit.  Each employee clearly and solemnly declared that they had settled all their claims against their employer arising from their termination.  On that basis they could not recant and allege unlawful termination.

All in all I consider the appeal lacks merit and it needs be dismissed.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E