Takunda Zongoro v Dicomm McCann and Chairperson Retrenchment Board N.O.

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/12/25
HELD AT HARARE 20TH & 25TH SEPTEMBER 2024
CASE NO.LC/H/690/24
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 20TH & 25TH SEPTEMBER 2024 AND

In the matter between

JUDGMENT NO LC/H/12/25

CASE NO.LC/H/690/24

TAKUNDA ZONGORO	APPLICANT

And

DICOMM McCANN	1ST RESPONDENT

And

CHAIRPERSON RETRENCHMENT BOARD N.O.	2ND RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE, JUDGE.

FOR THE APPLICANT: IN PERSON FOR 1ST RESPONDENT:B.T. MUDHARA

FOR 2ND RESPONDENT:NO APPEARANCE

MAKAMURE J:

This is an application for review.

At the commencement of the hearing the applicant abandoned preliminary issues which he had raised. The respondent too raised a preliminary point. It was persisted with.

Preliminary point

The preliminary issue was that the applicant approached the Court prematurely as he had not exhausted domestic remedies. The Court’s attention was drawn to a letter dated 28th June 2024 which the respondent wrote the applicant. The letter is titled “Re : NOTICE OF TERMINATION OF EMPLOYMENT”. The opening paragraph reads : ‘ We refer to the above matter and hereby advise that as you might be aware, the company is currently downsizing due to operational challenges. Due to this exercise your position will be made redundant in the new structure. Accordingly , the company hereby gives you notice of intention to retrench you. The notice shall start running from the 1st of July 2024.’ The letter

then advises that it was giving the applicant three (3) months’ notice of intention to terminate the applicant’s contract of employment. In another correspondence the respondent advised the applicant that :‘In line with the notice of retrenchment please note that today @5pm will be your last period.’ The applicant’s response to the preliminary issue was that he was not given any option and was told that the 28th was his last day. Further, there were no prior meetings on the said retrenchment. As a result, he sought intervention of the Court.

The correspondence referred to above showed that while the respondent was referring to retrenchment, it had effectively terminated the applicant’s contract of employment. It did not give the requisite the fourteen days’ notice provided for in the Act. Thus, the respondent cannot say that the applicant approached the Court prematurely. I agree with the applicant’s position that he had no option but to approach the court. I therefore find that there is no merit in the preliminary point raised. It is dismissed.

Merits

Section 92EE of the Labour Act , Chapter 28:01 (the Act ) provides for review as follows:

‘ 92EE Grounds of review by Labour Court

Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

The Applicant raises the following grounds:

‘1 The 1st respondent grossly erred and misdirected(sic) at law in terminating the applicant’s contract of employment on notice under the guise of retrenchment.

2.Alternatively the 1st respondent grossly erred at law in failing to follow the prescribed retrenchment procedures in terminating the applicant’s contract of employment.’

The applicant was employed by the respondent as a Graphic Designer. He states in his founding affidavit that on 25th June 2024 a meeting was held in the boardroom at the

workplace . At that meeting the respondent’s Managing Director uttered some words which the applicant viewed as derogatory. This was in the presence of thirteen other employees of the respondent. Some three days later, on 28th June 2024 the respondent terminated the

applicant’s contract of employment with it on three months’ notice. In terms of that letter the applicant did not have to report for work during the notice period. The letter reads thus:

‘RE: NOTICE OF TERMINATION OF EMPLOYMENT

We refer to the above matter and hereby advise that as you might be aware, the company is currently downsizing due to operational challenges. Due to this exercise, your position will be made redundant in the new structure. Accordingly , the company hereby gives you notice of its intention to retrench you. The notice shall start running from the 1st of July 2024.

The employer therefore gives you three (3) months’ notice of the its (sic) intention to terminate your employment in terms of section 12(4) of the Labour Act (Chapter 28:01). During the three months’ notice , the employer has chosen to waive the notice period and you will not be required to come to work during the notice period.

All your terminal benefits shall be paid in terms of Section 12C of the Labour Act as amended. This should be two weeks’ salary for every year worked from the time of your current contract until the date of termination.

Further, all your accrued leave days up to the date of termination will also be paid together with your notice pay. This payment shall be in full and final settlement and you will be required to sign if you agree with the package the company is offering you.

We thank you for your service during the currency of your employment with the company and wish you all the best in your future endeavors.

Yours sincerely (Signed)’

The applicant did not sign the above letter. Following his refusal to sign, the respondent through one Kudzaishe Matingwina, on the same date , 28th June 2024, wrote the following email to the applicant:

‘We note that you have refused to sign the retrenchment letter, citing that you need to consult your lawyers , nonetheless the notice will apply. In line with the notice of retrenchment, please note that today @5pm will be your last period. Please make sure that you handover all the work that you have been working on and company assets such as external hard drive.

You can always contact us via email once you have consulted with your legal practitioner.’

The applicant also got a text message from the National Social Security Authority (NSSA) to the effect that his employment with his employer had been terminated.

It was as a result of the above pieces of communication that the applicant approached this Court for review raising the above grounds.

For the purpose of this judgment the 1st respondent will be referred to as ‘the respondent.’

The parties appeared in Court. The applicant’s position is that he was improperly dismissed from employment. His efforts to discuss the matter failed. His last working day was 28th June 2024,which was a Friday. He told the Court that when he came to the workplace on the next working day, he was denied entry to the premises. The respondent’s position on the other hand is that the applicant prematurely approached the Court. One of the arguments advanced in heads of argument filed on behalf of the respondent is that the fact that the applicant was given more that fourteen days’ notice did not change the colour of the exercise. It is not stated in terms of which section of the Act the three months’ notice was given. It was argued that the heading of the letter should not be misunderstood. In paragraph 10.3 of the heads of

argument the following is stated ( in part) on behalf of the respondent: ‘ In line with that , it ought to be emphasized that the heading ought not be given any other meaning since retrenchment is also regarded as one of the forms of termination of employment... The rest are modalities of how the retrenchment would be done including the negotiations.’ The respondent insisted that it substantially complied with provisions of the Act and that the applicant suffered no prejudice

The respondent gave the applicant notice to terminate employment purportedly in terms of s12(4) of the Act.

S12 of the Act provides for : ‘Duration, particulars and termination of employment contract’. S12(4) of the Act reads:

(4) Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be—

three months in the case of a contract without limit of time or a contract for a period of two years or more;

two months in the case of a contract for a period of one year or more but less than two years;

one month in the case of a contract for a period of six months or more but less than one year;

two weeks in the case of a contract for a period of three months or more but less than six months;

one day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work.’

It is clear that s12(4) is concerned with the period of notice of termination subject to the provisions of subsections (5), (6) and (7) of the same section. The present matter does not concern a probationary period or the question of provision of accommodation by the employer or the question of mutual agreement to waiver of notice by the parties. So, the section under which the applicant was given notice is not relevant to his circumstances. The said notice was therefore irregular.

S12(4a) of the Act provides for termination of employment as follows:

‘(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer—

by mutual agreement in writing;

for the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned No employer shall terminate a contract of employment on notice unless—’(Emphasis added)

The provisions of s(4a) are clear. A contract of employment, on the part of an employee can only be terminated where the employee either resigns or retires. In the present case the applicant did not resign, neither did he retire. On the part of the employer the contract can be terminated where parties have agreed and such mutual agreement has been reduced to writing. The employer can also terminate the employment relationship where the employee has committed a breach of the express or implied terms of contract after due process has occurred with respect to such breach. In the present case the parties did not have a mutual

agreement which was reduced to writing and neither was there a breach of the express or implied terms of contract by the applicant.

The manner in which the respondent either terminated the applicant’s contract of employment or retrenched him or intended to retrench as shown in the letter dated 28th June 2024 is totally alien to the provisions of the Act. This is clearly irregular. Further the email by Kudzaishe Matingwina just compounded the irregularities. The email , while purporting to be dealing with retrenchment, gave the 28th of June 2024 as the applicant’s last working day.

S12C of the Act provides for : Retrenchment and compensation of employment on retrenchment. S12C(3) provides as follows:

‘ (3) An employer who intends to retrench any one or more employees or has negotiated with his or her employees a retrenchment package better than the minimum retrenchment package (hereafter called the “agreed retrenchment package”) shall—

give fourteen days written notice—

of the intention to retrench in the absence of an agreed retrenchment package to the works council established for the undertaking or, if there is no works council established for the undertaking concerned or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; and

of such intention or the agreed retrenchment package, as the case may be, to the Retrenchment Board; and

of the intention to retrench in the absence of an agreed retrenchment package to the employee or employees concerned;

in the absence of an agreed retrenchment package, provide the works council or employment council, as the case may be, and the Retrenchment Board with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment.’(Emphasis added).

The respondent did not follow provisions of s12C of the Act.

The manner in which the respondent dealt with the applicant was not in accordance with s(4a) of the Act, and provisions of s12C of the Act were completely ignored.

The respondent acted in flagrant disregard of the law. The respondent in its letter to the applicant indicated that it was restructuring. That is its prerogative. However, that did not entitle it to disregard the provisions of the law and proceed to treat an employee in such a manner. There was no dialogue between the parties as envisaged by both the different provisions set out in s(4a) and s12C of the Act. This appears to be a decision taken arbitrarily by the respondent. The respondent appears to be of the view that, once an employer is intent on terminating an employee’s contract of employment , that can be done any how as long as they mention some provisions of the Act. This is unfortunate and can be disastrous if it is allowed to happen. I think employers must not lose sight of the fact that while it is accepted that they have their business interests to protect, when they dismiss employees they should adhere not only to provisions of the Act, but should also uphold the employee’s constitutional right to be treated with dignity. I say this in view of the fact that when the applicant returned to the workplace after he had been given the letter terminating the contract of employment, the security personnel of the respondent denied the applicant entry. There was no suggestion that the applicant had misconducted himself and was therefore not welcome at the workplace. I think this was a slight to the applicant’s professional integrity who prior to this, and as far as the record shows, had worked well for the respondent. The

undisputed position is that the respondent had the prerogative of doing what it thought was the best for its business, but this had to be done in terms of the Act. The respondent failed in this respect.

In Stanbic v Charamba 2006(1)ZLR 96 (S) the Supreme Court held that failure to follow peremptory provisions of the Act were fatal to the proceedings in question. In Elizabeth Chipunza v NEC For the Iron and Steel Industry HH 681-19 the Court held that failure to follow provisions of s12C of the Act when retrenching employees renders the proceedings null and void. The respondent terminated the applicant’s contract of employment under the guise of retrenchment and yet it did not follow the relevant provisions. It did not follow the provisions of s(4a)of the Act. The respondent could not conduct both procedures.

While the end result which the respondent intended to achieve was to terminate the

applicant’s contract of employment, it could only do so in terms of one of the procedures. As the provisions show, they cannot be merged, it’s either one or the other. This means that the proceedings are irregular.

In view of the foregoing the applicant has proved his case with respect to the main ground. It will therefore not be necessary to consider the alternative ground. The application therefore succeeds.

In the result : IT IS ORDERED THAT:

The application for review be and is hereby granted.

The purported retrenchment of the applicant by 1st respondent dated 28th June 2024 be and is hereby set aside.

The respondent be and is hereby ordered to reinstate the applicant to his post without los of salary or benefits with effect from the date of dismissal.

In the event that reinstatement is no longer possible the respondent be and is hereby ordered to award the applicant damages in lieu of reinstatement as agreed between the parties. Should parties fail to agree , either party is free to approach the Court for quantification.

The 1st respondent pays costs of suit.

MUNDIA & MUDHARA , RESPONDENT’S LEGAL PRACTITIONERS.