Peters Motel v Renias Magara & 7 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/777/2016
HARARE, 3 NOVEMBER 2016 &
CASE NO LC/H/538/2014
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/777/2016

HARARE, 3 NOVEMBER 2016 &			                  CASE NO LC/H/538/2014

2 DECEMBER 2016

PETERS MOTEL								APPELLANT

RENIAS MAGARA & 7 OTHERS						RESPONDENTS

Before the Honourable G Musariri, Judge

(IN CHAMBERS)

MUSARIRI J:

This matter was referred to me in terms of section 89 (2)(a)(i) of the Labour Act [Chapter 28:01] (hereafter called the Act) for determination on the record.

On 14th May 2014 at Harare, arbitrator N Bore issued an arbitration award. He ordered the appellant to either reinstate the respondents or pay them damages in lieu of reinstatement. The appellant then appealed to this court against the award. The relevant portion of the grounds of appeal declaimed as follows:

“5.	The arbitrator also erred at law by holding that the respondents were unfairly dismissed when the matter was not one of dismissal but of termination.

6.	The arbitrator erred at law by making an award on different considerations from the respondent’s submissions. In other words the arbitrator formulated a new claim for the respondents and made an award based on the new claim.

7.	The arbitrator also erred at law as he failed to appreciate that the law allows termination of employment on notice.”

The arbitrator’s reasoning in the award is apparent from the subtitle “Analysis of submissions”. He noted that the appellant wished to retrench for operational reasons. On that basis he opined that the appellant ought to have followed retrenchment procedures set out in section 12 C of the Act. The appellant not having followed the procedures the terminations of the respondents were ruled as unlawful.

The termination letters are filed of record. The one addressed to the first respondent is instructive. The relevant portion reads thus:

“This letter serves as an advice of termination of your contract with us from

1 March 2013 ….

Find breakdown of your terminal benefits:

Wages				    -

Three months’ notice		$664-62

Pay leave due			    -

Total				$664-62

P.S. payment has been deposited in your CBZ Account number …..”.

(The underling is for emphasis)

It is clear that the appellant intended to terminate the respondents on notice. The then section 12 (3) of the Act permitted such termination on notice. This position was reaffirmed by the Supreme Court in the matter of Nyamande v Zuva SC 43-15.

The respondents averred that retrenchment procedures should have been followed as ruled by the arbitrator. Clearly that position is untenable. Once it is accepted that the employer terminated on notice, the question of retrenchment becomes irrelevant. Therefore the arbitration award ought to be set aside.

Wherefore it is ordered that:

The appeal be and is hereby allowed; and

The award issued by Arbitrator N Bore dated 14th May 2014 is set aside.

G Musariri

J U D G E