Young Women Christian Association OF Zimbabwe V B Gwagwadza & 8 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/401/2016
HARARE, 28 JANUARY 2016 &
CASE NO LC/H/REV/77/2015
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/401/2016

HARARE, 28 JANUARY 2016 &				 CASE NO LC/H/REV/77/2015

23 JUNE 2016

In the matter between

YOUNG WOMEN CHRISTIAN ASSOCIATION		APPLICANT

OF ZIMBABWE

Versus

B GWAGWADZA							1ST RESPONDENT

And

A DZADZA								2ND RESPONDENT

And

D CHIGWIDA							3RD RESPONDENT

And

C CHIWARA							4TH RESPONDENT

And

J SYDNEY								5TH RESPONDENT

And

M MUGONA								6TH RESPONDENT

And

D CHITSUNGE							7TH RESPONDENT

And

L AGUSHTO								8TH RESPONDENT

And

M CHOTO								9TH RESPONDENT

Before the Honourable R F Manyangadze J

For the Applicant      R Zimudzi  (Legal Practitioner)

For the Respondent   S Dube (Trade Unionist)

MANYANGADZE J:

This is an application for review of a retrenchment package approved by the Minister of Labour and Social Services (“the Minister”) on 24 June 2015. The Minister approved the respondents’ retrenchment as follows:

TERMS AND CONDITIONS OF RETRENCHMENT

The basis of the application for review is that the package awarded is excessive, and beyond the capacity of the applicant to pay. Thus, the applicant is not attacking the retrenchment process, but the quantum of retrenchment that was approved. The ground for review is that the package approved is grossly outrageous. It is on the basis of the gross unreasonableness of the package that a review is sought.

The applicant submitted that it is heavily indebted, and is unable to meet the terms and conditions set by the Retrenchment Board, which were approved by the Minister.

The applicant’s case is summed up in paragraphs 7.1 to 7.2 of its heads of argument, which read:

“7.1	The terms and conditions set will translate to payment of a total sum of 78 775-00 USD (Seventy Eight Thousand Seven Hundred and Seventy Five United States Dollars) as more fully appears from Annexure ‘D’ and ‘E’ to the application. The amount is excessive in the circumstances considering the fact that retrenchment was necessitated by financial problems and the applicant is not in a position to pay such an excessive amount. (underlining added)

7.2	The Retrenchment Board grossly erred by awarding an excessive amount and disregarding the fact that the applicant is heavily in debts amounting to 611 447-31 USD (Six Hundred and Eleven Thousand Four Hundred and Forty Seven united States Dollars and Thirty One Cents) as per Annexure ‘F’ to the application. It is clear therefore that the terms and conditions set by the Retrenchment Board are incapable of being complied with.” (underlining added)

On the other hand, the respondents contend that the package awarded is not outrageous. It was fair and equitable, the Retrenchment Board having:

“Accepted proposals submitted on both parties, considered and analysed all the submissions made and approved the retrenchment in terms of section 12 C subsection b of the Labour Act [Chapter 28:01]”.

The respondents pointed out that they had proposed service pay of three months for every year served, but were awarded one month. The applicant had proposed two days for every year served. In the circumstances:

“The terms and conditions for retrenchment awarded by the retrenchment board are fair and cannot be said to be outrageous at all.”

The terms and conditions approved by the Minister translate to a total amount of US$68 775-00. This is the total figure from the figures listed in annexures ‘D’ and  ‘E’, filed of record, which show details of the respondents’ statutory payments, service pay, severance pay and relocation expenses. The amount is not US$78 775-00, as averred in the appellant’s heads of argument.

Against this figure, of US68 775-00, the applicant proposed a total amount of US$30 416-57. Details of how this amount was worked out appear on annexure ‘G’, page 20 of the record.

As already indicated, the applicant seeks a review of the retrenchment package approved on the basis that it is grossly unreasonable. There is a clear and emphatic averment to that effect in paragraph 7 of the applicant’s heads of argument, wherein is stated:

“The Minister of Labour and Social Services’ terms and conditions for the applicant’s retrenchment are grossly outrageous in their defiance of logic in light of the applicant’s circumstances, reasons for retrenchment and submissions made before the Retrenchment Board.…” (emphasis added)

Faced with a matter in which the reasonableness of the decision of a lower tribunal or administrative body is in issue, the court does not have much room to manouvere. It must be wary of the danger of substituting its own decision in place of the decision of the body empowered to make the decision. In his book, A Guide to the Administrative and Local Government Law in Zimbabwe 4th Edition, 2006, at page 98 G Feltoe observed that:

“In Zimbabwe, the courts have in several cases adopted the Wednesbury test, namely, that the decision will be reviewable if the decision is so outrageous in its defiance of logic or accepted standards that no reasonable person who has applied his mind to the question to be decided would have arrived at the decision.”

The position the learned author was highlighting was clearly stated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). KORSAH JA stated, at page 670, that:

“The general rule of the law as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

Although that case was dealing with an appellate court’s approach to a lower court’s findings of fact, the principle enunciated equally applies to a review court were the reasonableness of the decision is being impugned. Such a decision cannot be set aside merely because the court considers it unreasonable. The court may fall into the error of merely “substituting its own decision in place of the decision of the body empowered to make the decision.”(per G Feltoe, supra).

In casu, the respondents sought a package made up of three months service pay. On the other hand, the applicant was offering two days service pay. The Minister approved one month service pay. Using the applicant’s schedule of salaries, the highest paid employee has a monthly salary of $613-00. A day’s salary would be $27-86. Its offer amounts to $55-72 for every year served. The lowest paid employee has a monthly salary of $283-00. The daily rate is $12-86. This result in service pay of $25-72 for every year served. The Minister cannot be said to have been grossly unreasonable by not accepting the applicant’s offer, which would result in such paltry figures.

There is, in my view, no basis on which to fault the Minister’s decision as grossly unreasonable against what the applicant was offering.

On the period of payment, the applicant proposed twenty four months. The employee with the lowest total package, of $1 125-57 going by the applicant’s proposed schedule, will receive his retrenchment at a monthly rate of $46-90. Again, the Minister cannot be said to have acted in a grossly unreasonable or irrational manner, for not accepting such a proposal.

In the circumstances, it is the court’s considered view that the applicant has not made out a case for the setting aside of the Ministerial approval. It has not satisfactorily demonstrated that such approval was so grossly unreasonable to warrant interference.

The only aspect that may however, require intervention is the period of payment. The Minister approved four months. The applicant wanted twenty-four months. Having rejected the applicant’s excessively long period, the Minister swung to the extreme end, and approved too short a period of payment. Given the other debts the applicant has, the period appears grossly unreasonable. A period of twelve months should meet the justice of the case. Twenty-four months, on the applicant’s much reduced proposal of two days service pay, is grossly unreasonable. On the other hand, four months, on an organisation with other debtors alongside the respondents, is an unduly harsh condition. A scaling up, and a scaling down, of the two proposals to twelve months, it seems to me, would be a justifiable intervention.

In the result, it is ordered that:

The application for review be and is hereby dismissed.

The terms and conditions for retrenchment approved by the Minister on 24 June 2015 be and are hereby upheld, save for the period of payment, which is hereby varied from four months to twelve months.

Each party bears its own costs.

Zimudzi & Associates, applicant’s legal practitioners