Patricia Mukumbi v Destiny Electronics (Pvt) Ltd & Retrenchment Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/170/2021
HARARE, 07 OCTOBER 2021
CASE NO. LC/H/235/21
JUDGMENT NO. LC/H/170/2021
CASE NO LC/H/235/2021
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT LC/H/170/2021

HARARE, 07 OCTOBER 2021			CASE NO. LC/H/235/21

AND 22 OCTOBER 2021

PATRICIA MUKUMBI	   				Applicant

DESTINY ELECTRONICS (PVT) LTD 			1st Respondent

RETRENCHMENT 	BOARD				 Respondent

Before Honourable G. Musariri, Judge

For Applicant		-	Mr J. Mutasa, Unionist.

For 1st Respondent     	-	Mr M. Kavhumbura, Attorney.

For 2nd Respondent 	-	No Appearance.

MUSARIRI, J:

Applicant applied to this Court for the review of her retrenchment by 1st Respondent.  The gist of her case is set out in the Founding Affidavit as follows

“7. 1st Respondent unlawful referred her proposed retrenchment to 2nd Respondent whereas the Labour Court provides that the proposed package was supposed to be referred to, the National Employment for Electronics Communications and Allied Industry which is the Employment Council for 1st Respondent

8. 2nd Respondent failed to realise that it had no jurisdiction to confirm the proposed retrenchment package because 1st Respondent had a functional National Employment Council.

11. The 2nd Respondent erred at law as it did not afford the Applicant her right to be heard as there was no agreement between the parties.  This is substantiated by the fact that there was no agreement between Applicant and 1st Respondent Annexure C and G”.

1st Respondent filed an Opposing Affidavit.  The pertinent paragraphs stated that

“Ad Para 6-9

Denied, 1st Respondent did not impose any package to the Applicant, it followed the dictate of the law.  The law provides that in case of disagreement on better terms, the employer pays for the minimum retrenchment package to the employee concerned (See annexure C being copy of pay advice slip)

7. Ad Para 11 -12

Denied.  The law is clear and unambiguity (sic) in that the Retrenchment Board has no adjudicating powers as alluded by Applicant.  Works Councils, employment councils and the retrenchment board have been rendered white elephants when it comes to retrenchment of employees in Zimbabwe as they no longer enjoy the legal power to approve or not to approve the retrenchment of employees.”

An analysis and comparison of the parties’ positons show that the crisp issue is whether the retrenchment should have been referred to the relevant Employment Council (NEC).  The applicable statute is the Labour Act Chapter 28:01.  Its Section 12C (1) provides that,

“(1) 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;”

Applicant read the provisions to mean that an employer is obliged to notify the relevant employment council of the proposed retrenchment.  Respondent read it to mean that there was no need to notify to the said council.  I agree with the Respondent.  Where there is a Works Council there is no need to refer to the employment council.  This is because the provision refers to the 2 councils in the alternative by use of the word “or”, .  The employment council would come in where there was no works council.  It is common cause that Respondent had a works council which was notified of the intent to retrench.  The parties failed to agree on a retrenchment. The employer was then obliged to pay the minimum package under section 12C (2) of the Labour Act.   Respondent paid the minimum package.  That was a complete discharge of its statutory obligations.  Applicant complained that the matter was wrongly referred to the Retrenchment Board (2nd Respondent) who then approved the retrenchment.  Under section 12 C (1) C Respondent was obliged to send a copy of the retrenchment notice to the Retrenchment Board.  Apparently Respondent did send the notice.  However, the Board proceeded to approve the retrenchment.  Such approval was not necessary.  The approval was harmless error which does not affect the outcome of this matter.

Respondent having complied with its statutory obligations as an employer, it follows that Applicant’s complaint of wrongful retrenchment cannot be sustained.

Wherefore it is ordered that,

1, The application for review be and is hereby dismissed; and

2 Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E