Sirtech Investments (Pvt) Ltd v Simbarashe Chirure & Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/10/2016
MUTARE, 17 MAY 2016 &
CASE NO LC/MC/15/2015
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/MC/10/2016

MUTARE, 17 MAY 2016 &					   CASE NO LC/MC/15/2015

23 JUNE 2016

In the matter between

SIRTECH INVESTMENTS (PVT) LTD					APPELLANT

Versus

SIMBARASHE CHIRIKURE & ORS					RESPONDENTS

Before the Honourable L M Murasi J

For the Appellant	T G Nenzou (Legal Practitioner)

For the Respondents    D Tandiri  (Legal Practitioner)

MURASI J:

The facts in this matter are largely common cause. The respondents were employed by the appellant. The appellant, due to viability problems, informed the respondents that it was no longer in a position to continue operations of the Mutare Branch. The appellant informed the respondents not to attend to work until told to do so by the appellant. The respondents were informed that they could in the interim seek employment elsewhere. The respondents later took their matter with the Labour Office which office referred the matter to arbitration. The arbitrator found in favour of the respondents and the appellant has sought relief in this court.

The appellant’s grounds of appeal are as follows:

The arbitrator erred on a question of law in determining that the appellant was liable to pay the respondents arrear remuneration in the sum of US$31 054-08 when in terms of Statutory Instrument 244 of 1999 in the circumstances, the appellant had no obligation to pay the said remuneration.

The arbitrator grossly misdirected himself and therefore erred on an issue of law in granting the claimant(s) arrear remuneration in the sum of US$31054-08 without any evidence.

The appellant’s main argument was that the arbitrator clearly misinterpreted the provisions of section 39 (5) and section 39 (8) of Statutory Instrument 244 of 1999. It was submitted by Mr Nenzou that in interpreting the provision and using the literal rule of interpretation, it could not have been held that the provision related to the provisions of section 39 (2). It was further submitted that the appellant’s circumstances were not those envisaged in section 39 (2) and thus fell within the ambit of “circumstances beyond the employer’s control.”

Mr Tandiri, on the other hand argued that the route taken by the appellant was an improper one. It was submitted that if the appellant was facing viability problems, it should have gone the retrenchment route. Mr Tandiri stated that the retrenchment route would have resulted in the appellant reducing its operational costs. Its was further submitted that a reading of section 39 (5) shows that what was envisaged was a short period of time and not a long period of time as was done by the appellant. It was further noted that the appellant had not terminated the respondents’ employment and were thus entitled to their salaries.

It is clear that the matter revolves around the interpretation of legislation in question. However it is pertinent to consider the arbitrator’s finding in this regard. The arbitrator states as follows:

“On the other hand the respondent cited section 39 of Statutory Instrument 244 of 1999. It is my considered view that the cited section is not in any way related to the respondent’s situation. The section is specifically designed for the effects on wages of rain off and work stoppages. The respondent lamented about harsh economic environment which led to the closure of the company. The section expresses the effects of weather on the operations of the company not what the respondent claims.”

The provisions of section 39 (5) relied upon by the appellant are as follows:

“5)	If an employer notifies an employee not to attend for work the following day, as no work will be available that day because of circumstances beyond the employer’s control, the employee shall not be entitled to any wages until he has resumed work at the request of the employer.”

Section 39 (8) provides:

“If the circumstances referred to in subclauses (2) and (5) prevail for more than one working day, the employer shall inform the employee accordingly, and upon receipt of this information, the employee shall not be entitled to be paid any wages until he has resumed work at the request of his employer.

Provided that such request shall not be unreasonably delayed beyond the time when circumstances which created the work stoppage no longer prevail.”

The heading of the section reads “Effects on wages of rain-off and work stoppage.” It is my assumption that the arbitrator’s finding was mainly due to the heading that appears at the beginning of section 39. The question that arises are the provisions of section 39 (2) and 39 (5) the same due to the fact that they fall under one heading? Section 7 of the Interpretation Act [Chapter 1:01] provides:

“In an enactment-

Headings and marginal notes and other marginal references therein to other enactments; and

…;

shall form no part of the enactment and shall be deemed to have been inserted for convenience of reference only.”

It is also known and accepted in the realm of statutory interpretation that while headings do not control the plain words of a statute, they may assist in explaining ambiguous provisions or words in a particular statute. In casu, the provisions of section 39 (2) clearly show that the situation envisaged is where there is “unsuitable weather and/or unworkable site conditions.” However the situation in section 39 (5) is different and does not refer to any unsuitable weather but to “circumstances beyond the employer’s control.” The appellant’s Counsel has referred to the Dictionary meaning as being that the appellant did not have the power to influence or direct the course of events. It is my view that the situation envisaged in section 39 (2) and that in section 39 (5) are clearly different. I make these views for the simple reason that section 39 (2) refers directly to weather-influenced situations whilst section 39 (5) deals specifically with circumstances that are beyond the control of the employer and there is no mention of unsuitability of weather in the latter. It is my further view that the two provisions must be interpreted and applied separately and independently from one another. I make the above observation having regard to the rules of interpretation. ZIYAMBI JA had this to say in Zimbabwe Electoral Commission & Anor v Commissioner-General, Zimbabwe Republic Police & Anor 2014 (1) ZLR 405 at page 412:

“Various rules have been formulated to assist the court in the interpretation of statutes. One of these, often referred to as the cardinal rule of construction, is the literal rule which requires that the words of a statute must be given their ordinary, literal and grammatical meaning.”

A court will only deviate from the clear and unambiguous meaning in a statute if this would lead to an absurdity and the intention being to give effect to the true intention of the legislature. I have already referred to the issue of the heading in the section. It refers to effects on wages on “rain-off” and “work stoppage.” It is my view that the issue of work stoppage is the other one provided for in section 39 (5). It is also important to note the provisions of section 39 (8). This provides that where the situation in section 39 (2) and 39 (5 prevail or continue to exist, employees are not entitled to wages until recalled by the employer. In casu, the appellant has not recalled the respondents. Can it therefore be said that the respondents are entitled to remuneration? A reading of the statute and facts in the matter would militate against making such a finding.

There is a proviso to section 39 (8) that an employer may not unreasonably delay the recalling of employees where the circumstances no longer prevail. The respondents did not adduce evidence to the effect that the situation had changed and the appellant was enjoined to recall them and consequently pay them their wages. In the circumstances I am of the view that the arbitrator erred in finding that section 39 (5) did not apply to the appellant’s circumstances. It is noteworthy that the arbitrator did not give cogent reasons for doing so.

There is an issue that was raised by Mr Tandiri. He submitted that the appellant should have used the retrenchment route in order to reduce its operational costs. This argument is difficult to grasp. The appellant’s position is that it is not in a position to operate. How would the retrenchment assist the appellant in the circumstances as it would of necessity involve the payment if packages to a sizeable number of the respondents? ZIYAMBI JA in Freda Rebecca Gold Mine Holdings Limited v M Nhliziyo & 180 Ors at page 7 of the cyclostyled judgment quoted McNALLY JA in Continental Fashions (Pvt) td v Mupfuriri & Ors 1997 (2) ZLR 405 (S) who had this to say at 407F:

“But where, as here, the purpose of retrenchment is to avoid the collapse and liquidation of the company, the well-being of the retrenchees cannot be the only consideration. The survival of the company is the motivating consideration. The purpose of the exercise is to save the company. In so doing, care must be taken to cushion the blow to the workers. But to say, as the tribunal has done in this case, that it is almost irrelevant whether or not the company can afford the package is a fundamental misdirection. The immediate objective of retrenchment remains the saving of the company and of the jobs of the remaining employees. Clearly therefore, although it is not stated in the Regulations, the ability of the company to pay the retrenchment package is the ultimate criterion – the bottom line. If the company cannot pay what it is ordered to pay, it must go into liquidation, which is what the retrenchment exercise was designed to avoid.”

The appellant is not in a position to operate its business because of the financial woes bedevilling it. The respondents, as alluded to earlier, have not adduced evidence to the effect that the appellant’s fortunes have improved. It therefore cannot be said that the route of retrenchment advocated by the respondents is achievable.

In the result, the court is of the firm view that the arbitrator misdirected himself in holding that the appellant was enjoined to pay the respondents arrear salaries. The arbitral award cannot be allowed to stand.

The court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of Honourable Vhiriri be and is hereby set aside.

Each party to bear its own costs.

Chibaya & Partners, appellant’s legal practitioners

Tandiri Law Chambers, respondents’ legal practitioners