Rydings School v Killian Kazunza & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/603/16
HELD AT HARARE
21 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/603/16

HELD AT HARARE 21 JUNE 2016				CASE NO LC/H/868/14

& 7 OCTOBER 2016

In the matter between:

RYDINGS SCHOOL					Appellant

And

KILLIAN KAZUNZA	& 3 OTHERS			Respondents

Before The Honourable Chidziva, J

For Appellant		L T Muringani (Legal Practitioners)

For Respondents		S N Mutindindi (Trade Unionist)

CHIDZIVA J:

This is an appeal against the award granted by honourable arbitrator Y Malama on 17 September 2014.  The award is couched as follows

“Having made the above observation, I award that the employees were unfairly dismissed and should be reinstated to their original positions without loss of salary and benefits from date of dismissal and that if reinstatement is no longer an option the employees be paid damages in lieu of reinstatement,  the quantum of which parties may agree and that failure to agree either party may refer the matter back to the arbitrator for quantification of such damages.”

The brief acts of the matter are that the respondents who were employees of the appellant were given notices of termination of their contracts of employments.  The respondents then challenged the termination at conciliation and the matter was not settled.  The matter was then referred for arbitration and the arbitrator handed down the award stated above.

Parties have agreed that the procedure used for retrenching the respondents was not proper.  If appellant used Section 12 C of the Labour Act [chapter 28:01] then there was a requirement that notice to retrench in writing be given.  The termination letters are silent on the notice issue.  Furthermore Section 12 (c) of the Labour Act outlines the procedures to be adopted in retrenching five or more employees.  The respondents were (4) four and thus the appropriate regulations to be used was S.I. 186 of 2003 which states that

“Section 3 (2) an employer who wishes to retrench less than five employees shall

Give written notice of his intention to the works council for the undertaking or if there is no such works council to the employment council established for undertaking or industry and

Provide the works council with details of every employee when it wishes to retrench and reasons for the proposed retrenchment.

The works council or employment council shall forthwith attempt to secure agreement between the employer and the employees…”

The parties in their submission have also stated that the appellant’s actions

amounted to unlawful termination and not unlawful dismissal.

What is in dispute is whether the arbitrator’s finding that damages in lieu of reinstatement was correct or not.  The appellants have argued that since this is a case of unlawful termination the competent and proper remedy was that the employer comply with the law i.e. that the employer should be ordered to follow proper procedures on retrenchment.

It is this court’s view that the wrong procedure of termination of contract was applied by the appellant.  Procedural irregularities in terminating a contract of employment in a legal nullity and status quo remains the same.

In the case of  Standard Bank of Zimbabwe Ltd v Aurthur T M Charamba SC 77/05 it was held that failure to comply with retrenchment regulations was improper.  The court then nullified the retrenchment and ordered reinstatement.

In this matter since the retrenchment procedures were not followed the retrenchment is a nullity.  The status quo of the respondents remains the same.  If the appellant still wishes to retrench the employees it then has to follow the correct procedure.

To that end therefore this court orders as follows

The arbitral award by honourable arbitrator Y Malama dated 11 December 2013 be and is hereby set aside.

The respondents be and are hereby reinstated to their original positions without loss of salary and benefits.

Appellant is ordered to comply with the law if it still wishes to retrench the respondent

Appellant to pay costs.

Muringani Mandikumba & Partenrs, appellant’s legal practitioners