UNKNOWN - Document appears incomplete, showing only "And" at beginning with "ELLEN NYAMANHINDI 2ND RESPONDENT" but missing full case title

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/60/2024
CASE NO LC/H/335/2023
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And

ELLEN NYAMANHINDI	2ND RESPONDENT

Before the Honourable Kachambwa J

For the Appellants	C Mucheche

For the 1st Respondent	O Kondongwe

For the 2nd Respondent	No appearance

THE APPEAL

This is an appeal against the whole determination done by a designated agent for the National Employment Council for the Air Transport Industry dated the 31st March 2023.

BACKGROUND

The appellants were employed by the respondent on contractual basis.

Following the decision in Nyamande and Anor vs Zuva Petrolium Private Limited 2015, (2) ZLR 186(S), the respondent terminated the contracts of employment on three months’ notice. This dismissal was challenged and the challenge went all the way to the Supreme Court wherein the Supreme Court ordered a reinstatement of the employees and payment of damages in lieu thereof as was decided in Air Zimbabwe (Private) Limited vs J.V Mateko, Elijah Chiripasi and Ors SC 180/20.

On the 12th of December 2020 the 1st respondent reinstated the appellants, paid them all their dues and also placed them on unpaid leave. While they were on the forced leave the 1st respondent was placed under administration in terms of the Reconstruction of State Indebted Insolvent Companies Act Chapter 24:27. Sometime in March 2021 the 1st respondent initiated a retrenchment process for the appellants. It paid them the minimum terminal benefits in terms of the Labour Act. They received and consumed the benefits. Thereafter, they complained that the 1st respondent had not complied with the Supreme Court order to reinstate and that in any case the retrenchment exercise was flawed.

A hearing to redress the matter was convened on the 5th of July 2021 by the 2nd respondent. She found that the Supreme Court order had been complied with. She further found that by taking and consuming the

retrenchment package the Appellants had waived their right to challenge the process. In other words they had agreed with the process. Their claims were dismissed hence the present appeal.

GROUNDS OF APPEAL

The grounds of appeal brought before the Labour Court are as follows;

The designated agent grossly erred on a question of law by making a clear contradiction at law by upholding the appellants’ illegal retrenchment by the 1st respondent on a flimsy inapplicable baseless basis of waiver, pursuant to her earlier finding in the determination that the retrenchment was legally botched or irregular thereby going on a frolic of her own to try and sanitise a legal nullity.

The designated agent grossly erred on a question of law by failing to realise and make a legally sound determination that the 1st respondent was legally estopped from commencing any retrenchment process before full compliance with both the legally binding and enforceable Supreme Court and Labour Court extant judgments ordering 1st respondent to reinstate appellants as employees or alternatively pay them damages in lieu of reinstatement.

The designated agent grossly erred on a question of law by failing to appreciate that a retrenchment is not alternative relief

for reinstatement was ordered by the Supreme Court and Labour Court and such decision is grossly unreasonable, outrageous and irrational in its defiance of logic such that no reasonable person properly applying his or her mind to the facts could arrive at such a decision.

The designated agent grossly erred on a question of law by failing to realise and find as she should have done that the 1st respondent was legally precluded from benefiting out of its manifestly wrong conduct arising from a patently unlawful retrenchment process which was null and void ab initio for want of compliance with the law and tainted with illegality.

Also the designated agent grossly erred on a question of law by failing to determine that the purported retrenchment process was a legal nought because it did not comply with statutory legal procedures, hence hollow and inconsequential by operation of the law.

The designated agent grossly erred and misdirected herself on the facts and the law by failing to determine that the payment of outstanding employee dues amounted to the appellants benefiting from a flawed retrenchment process.

The designated agent erred on a point of law and further grossly erred and misdirected herself by blatantly disregarding that there was none compliance with the Supreme Court judgment,

which ordered reinstatement of the appellants in light of the purported payment of retrenchment packages.

1st RESPONDENT’S RESPONSE

The 1st respondent submitted that the Supreme Court judgment was complied with and that the decision to place the appellants on unpaid leave was an administrative decision because the 1st respondent was under reconstruction.

It was averred that the appellants were reinstated on the 12th of December 2020 in compliance with the Supreme Court judgment which was handed down on the 7th of December 2020. The appellants were paid their back pays as per the judgment’s instruction. The 1st respondent submitted that the appellants were indiscriminately placed on unpaid leave as was done with the rest of the identified employees.

The 1st respondent asserted that the legally appointed Administrator retrenched the employees in terms of the Reconstruction of State- Indebted Insolvent Companies Act [Chapter 24:27]. It was submitted that the powers of the designated agent are derived from the Labour Act and that the Reconstruction Act was applicable during the period of retrenchment of appellants. The 1st respondent further submitted that the administrator has the power to retrench employees employed by a company before reconstruction, if retaining them prejudices the viability of the company under reconstruction.

The 1st respondent pointed out that according to section 18 (1) (e) of the Reconstruction Act the administrator can bring or defend any action or other legal proceedings in the name, and on behalf of the company during the period of reconstruction. The 1st respondent averred that the appellants failed or neglected to bring forth their claim during the period of reconstruction and as such have no legal basis to pursue such an action post reconstruction.

The 1st respondent submitted that appellants were retrenched having been individually notified of the retrenchment by way of letters and that appellants were give retrenchment packages which they acknowledged receipt of. The 1st respondent submitted that the matter was not properly before the designated agent and that the wrong respondent(s) were cited. The respondents prayed that the claim be dismissed for lack of merit.

APPELLANTS’ ARGUMENT

The appellants submitted that they did not deny the fact that the employer had the right to retrench employees. However, such right should be exercised paying due regard to the retrenchment procedure in terms of section 12 C (1) of the Labour Act. The 2nd respondent in her determination acknowledged that the retrenchment process was flawed and yet went on to determine in favour of the 1st respondent. The reason for her determination was that the appellants benefited

from a flawed process. The appellants said that this was contradictory They further said that no evidence was presented to show the benefits the appellants reaped from that process.

It was argued that a retrenchment is effected in terms of section 12 C (1) of the Labour Act. The appellant asserted that failure to follow proper retrenchment procedures by the 1st respondent therefore nullifies and renders such conduct void.

The appellants argued that the 1st respondent’s conduct of refusing or failing to comply with or implementing the Supreme Court judgment of December 2020 was an illegality which falls within the ambits of unfair labour practice as prescribed under section 8 of the Labour Act. The 1st respondent’s conduct violated the appellants’ right to fair labour rights and standards as well as just and equitable conditions of work protected as embedded under section 65 (1) and 65 (4) of the Constitution of Zimbabwe. The 1st respondent’s failure or refusal to comply with the Supreme Court’s ruling sufficed as unfair labour practice. The 1st respondent was said to have shown its motive of getting rid of the applicants by withdrawing its decision to reinstate and going on to retrench the appellants.

1st RESPONDENT’S ARGUMENT

The 1st respondent argued that it complied with the Supreme Court judgment. The decision to place the appellants under unpaid leave was an administrative decision as the respondent was under

reconstruction. It further asserted that they complied with the Supreme Court judgment.

It was submitted that the appellants were paid their back pays as instructed by the Supreme Court’s judgment but were however, indiscriminately placed on unpaid leave as was done with the rest of the employees.

THE SECOND RESPONDENT’S JUDGMENT

The 2nd respondent’s judgment is clear that although the procedure was flawed, the appellants benefited from the flawed procedure. It is a well- known fact that the remedy to an unlawful termination of contract is reinstatement or payment of damages. The 2nd respondent could not overlook the fact that the appellants had already been paid the minimum retrenchment package as provided by section 12C (2) of the Labour Act. The appellants’ conduct of accepting the package was inconsistent with enforcing their right to have their matter heard in terms of section 63 of the Labour Act. Accepting the retrenchment package meant the appellants impliedly waived their right to refer the matter seeking any relief.

THE LAW

Employees who accept their retrenchment packages, cannot then claim that they have not accepted the terms and conditions of the retrenchment as was stipulated in Chidziva and Others vs ZISCO 1997 (2) ZLR 368. The Supreme Court introduced a waiver to the effect that even when retrenchment procedure has not been followed, employees who accept packages may be taken to have waived their right to object the procedural irregularities.

ANALYSIS

Termination of employment on notice is acceptable under common law whether the reason is economic or otherwise. Given the facts of the case one can safely say that the appellants knew of and accepted the retrenchment when they accepted the back pay which was more than they were owed. They cannot then cry foul saying that they did not know that the back pay included their retrenchment package. Ignorance of the law is not an excuse. The appellants received and acknowledged receipt of retrenchment letters. They acknowledged receipt of the letters by appending their signatures and hence they cannot then say they did not read the contents and claim that they were not notified of the termination.

The law states that an employer who wishes to exercise the right to retrench is simply required to follow the road map laid by the law in terms of retrenching. An employer who wishes to retrench one or more employees should give written notice of its intention to the works council

established for the undertaking, if there is none, to the employment council established for the undertaking or industry and if there is none to the Retrenchment Board. In casu the appellants were all notified prior to the termination of their contracts.

It is crystal clear that the retrenchment process in terms of Section 12C is a self-regulating process which was meant to make it easier for parties to complete the retrenchment process without going through the rigors of via the retrenchment board for approval or the Minister of Labour as used to be the case under the old repealed section which made retrenchment a cumbersome process. This was underscored by the Labour Court as per Honourable Muchawa J in the case of Mandas Marikanda v Ticharwa Kagu and 4 Ors LC/H/502/17.

It must be emphasized that the employer retains the discretion to make business decisions which the employer deems best for the business, the discretion include decision to re-arrange its staff and at the same time the employee equally has a right to be subjected to a lawfully and procedurally executed retrenchment process which religiously follow the procedures. However, the employee has the choice to waive the right to follow this process. It is a choice. In the present case the employee chose the shortcut. The employee was well aware of the retrenchment and chose to accept the terminal benefits.

DISPOSAL

The Appellants were reinstated and they waived their right to the procedure for retrenchment. The appeal has no merit in the circumstances. It is accordingly held that the appeal be and is hereby dismissed with costs.