Barzem Enterprises (Private) Limited v Golden Penduka, Tendai Nyatsanga, Ben Zindoga and Mupangani Faith N.O.

### Preamble
Judgment No. SC 60/19
1
Civil Appeal No. SC 963/17
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DISTRIBUTABLE	(57)

BARZEM     ENTERPRISES     (PRIVATE)     LIMITED

v

GOLDEN     PENDUKA     (2)     TENDAI     NYATSANGA     (3)     BEN     ZINDOGA     (4)     MUPANGANI     FAITH     N.O.

SUPREME COURT OF ZIMBABWE

GARWE JA, MAKARAU JA & HLATSHWAYO JA

HARARE, JUNE 7, 2018 & JULY 18, 2019

T. Zhuwarara, for appellant

J. Mambara, for first and third respondents

MAKARAU JA

[1]	This is an appeal against the whole judgment of the Labour Court, handed down on 25 August 2017, confirming a ruling by the fourth respondent, a labour officer that the termination of the employment of the first to third respondents by the appellant was unlawful. In consequence thereof, the appellant was ordered to reinstate the first to third respondents without loss of salary or benefits or, in the alternative, pay damages.

Background facts

[2]	In an exercise to cut down on its costs, , the appellant gave notice to seventeen of its employees on 4 August 2015, that it intended to terminate their employment contracts  three months after the date of the notice. This was following the decision of this Court on 17 July 2015 in Nyamande and Another v Zuva Petroleum (Private) Limited SC 43/15 which upheld the common law right of the employer to terminate the employment contracts of its employees on notice.

[3]	The seventeen employees were employed in different capacities and included the first and third respondents. No reasons were given for the termination.

[4]	Aggrieved by the termination, the first and third respondents approached a labour officer.  Their complaint was that the concurrent termination of their contracts of employment on notice was in effect a veiled retrenchment and was therefore unlawful. In addition, they also contended that the termination of their employment on notice was unlawful.

[5] Conciliation efforts by the labour officer were in vain. I interpose here to note that during the conciliation proceedings, the appellant offered to pay the affected employees the minimum compensation payable in terms of s 12 C of the Labour Act, which provides for retrenchments. The offer was rejected. The parties then requested that the matter be set down for determination. The labour officer who was seized with the matter was transferred to another station before setting the matter down. The parties agreed that the matter be determined on the basis of the written submission that they had filed of record.

[6]	In terms of the written submission filed of record, the first and third respondents’ complaint was that the appellant had effectively retrenched them and the parties were failing to reach agreement on the compensation payable for the consequent loss of employment. In the alternative, they contended that the termination of their contracts of employment on notice was unlawful and therefore invalid. I frame the two contentions in the alternative as they are mutually exclusive. The first one accepts the termination of employment by retrenchment whilst the second rejects the termination of services as being unlawful.

[7]	The matter was placed before the fourth respondent, who in her draft ruling, found in favour of the employees and declared the termination of services on notice to be unlawful.  She further ruled that the appellant should reinstate the first and third respondents without loss of salary and benefits or, in the alternative, pay damages. In compliance with the law, the fourth respondent submitted her draft ruling to the court a quo for confirmation. As stated above, the court a quo confirmed the ruling, prompting this appeal.

The appeal and argument

[8]	Whilst the appellant raised five grounds of appeal, one having been abandoned at the commencement of the hearing, nothing much turns on these as appellants’ counsel did not rely on the grounds of appeal filed of record but on an alleged irregularity in the proceedings before the fourth respondent, which he argued, vitiated the order made.

[9]	It was argued on behalf of the appellant that the main complaint of the employees before the fourth respondent was that they had in effect been retrenched. Instead of making a finding on this complaint, the fourth respondent, determining only the second argument, found that the termination on notice was a legal nullity as it was against the law.

[10]	It was further argued that the court a quo ought not to have confirmed the draft ruling by the fourth respondent in light of this irregularity.

[11]	In response, it was argued on behalf of the first and third respondents that the fourth respondent did not err by determining the matter solely on the basis of the unlawfulness of the termination which offended against the provisions of s 12 (4) (a) of the Labour Act [Chapter 28.01].

Analysis

[12]	In her determination, the fourth respondent was aware that one of the complaints filed by the first and third respondent was that they had, in effect, been retrenched.  She adverts to this in the background facts in a somewhat inelegant fashion as follows:

“The herein three Claimants are among other Respondent’s several employees in excess of ten whose services were concurrently terminated on notice. Trite to mention that the respondent’s written notices of termination of the employees contracts of employment were silent on the reason for their termination. On the 25th of September 2015, the trio claimants lodged their matter before the tribunal arguing that the Respondent erred in terminating their contracts on notice instead of retrenching as espoused in the Labour Act (sections a and 12C).”

[13].Later, when summarising the claimant’s submissions she, in the same fashion, had this to say:

“The claimant asserts that the respondent terminated their (sic) contracts of employment together with the other seventeen employees at the same time purportedly using the common law right to terminate on notice. However, the claimant avers that the respondent was legally mandated to undertake the proper retrenchment process so far as the inherent Claimant’s contract of employment were concerned. In fact, the claimants argue that section 12C as read together with section 2 of the labour act were the actuate provisions to govern their employment contract termination since the respondent terminated more than 5 employees at a once off undertaking. The claimants asserts that the respondent terminated their contracts of employment as a cost cutting measure or as a result of abolition of post consequently makes the need for retrenchment an inescapable exercise for the respondent as far as the termination of the claimant’s among other employees is concerned.”

[14]	In her analysis and findings, she however did not determine the issue. Rather, it was her sole finding that the amendment to the law following the decision in Nyamande v Zuva Petroleum (Private) Limited (Supra) had clearly invalidated the claimant’s termination of employment. Accordingly, such termination, being in contravention of the provisions of s 12 (4a) of the Labour Act, was unlawful.

The Law

[15]	This Court has held in a number of cases that failure to determine an issue raised before a determining authority is a gross irregularity that vitiates the proceedings. (Menk & Others v Mateira & Others SC 36/19;  Gwarazimba v C. J. Petron & Company (Proprietary) Limited SC 12/16; P G Industries v Bvekerwa SC 53/16; Heywood Investments v Zakeyo SC 32/13; Longman Zimbabwe v Midzi 2008 (1) ZLR 203 (S) and GMB v Muchero 2008 (1) ZLR 216 (S)).

[16]	The position is precisely and concisely captured by GARWE JA in Gwarazimba v C. J. Petron & Company (Pty) Limited (supra), where on page 7 of the judgment and, relying on Longman Zimbabwe (Private) Limited v Midzi (supra), he had this to say:

“The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, unless the issue so determined can put the whole matter to rest …”

[17]	Thus, the general position in our law is that where two or more issues are raised before a court, the court is duty bound to make a pronouncement on each. This is particularly so where the parties, raising the same set of facts, contend that these amount to different legal positions. The court must, in my view, pronounce itself on why the facts give rise to one legal position and not the other or others. It is not sufficient to make a pronouncement on just the one.

[18]	In casu, it is not in dispute that the fourth respondent did not make any pronouncement on the issue raised by the first and third respondents that they had effectively been retrenched. She should have.

[19] As stated above, the first and third respondents made alternative claims. They claimed on one hand that their contracts of employment had been terminated by way of retrenchment and they wanted the appellant to follow the retrenchment proceedings and pay them commensurate compensation. On the other, they alleged that they had been unfairly dismissed and should be reinstated. Because they were relying on the same facts to allege either a retrenchment or an unfair dismissal, the fourth respondent had to determine each issue and give reasons why the facts amounted to one and not the other.

[20]	The point must be made that where a party seeks certain specified relief, and that failing, an alternative, it is irregular for a court to determine and grant the alternative relief without even commenting on or considering the main relief sought.

[21]	It is therefore my finding that it was a misdirection on the part of the fourth respondent in the circumstances of this matter, to fail to determine the issue of retrenchment which was live in the proceedings before her.

Disposition

[22]	On the basis of the finding that I make above, there was no valid draft ruling for the court a quo to confirm. Resultantly, the proceedings before and the decision of the court a quo, being based on a nullity, have to be vacated.

[23]	Regarding costs, there is no basis for these not to follow the cause.

[24] In the result, I make the following order:

The appeal is allowed with costs.

The decision of the court a quo is  set aside and substituted with the following;

“(a)	The draft ruling by the fourth respondent is set aside.

(b)	The matter is remitted to a labour officer for a hearing de novo.”

GARWE JA:			I agree

HLATSHWAYO JA:	I agree

Mawere Sibanda Legal Practitioners, appellant’s legal practitioners.

J Mambara & Partners, first and 3rd respondents’ legal practitioners.