Albert Dzindikwa & Amanda Razemba & Beauty Gurenje v Wheatstar (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/764/2016
HARARE, 19 JULY2016
CASE NO. LC/H/818/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/764/2016

HARARE, 19 JULY2016				CASE NO. LC/H/818/15

AND 2 DECEMBER 2016

In the matter between:-

ALBERT DZINDIKWA				1st Appellant

And

AMANDA RAZEMBA				2nd Appellant

And

BEAUTY GURENJE				3rd Appellant

And

WHEATSTAR (PVT) LTD				Respondent

Before Honourable R.F. Manyangadze, J

For Appellant		J Bamu (Legal Practitioner)

For Respondent		A Sengwe (Human Resources Officer)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 5 August 2015, which upheld the termination of the appellants’ employment on notice.

The appellants were employed by the respondent in various capacities, on contracts without limit of time. On 10 October 2014, the respondent gave the appellants notice of termination of their employment. The notice read, inter alia, that;

“Our business has not been spared from the current challenges facing the industry. As such this letter serves as notice to terminate your service with effect from 31st December 2014.”

The appellants lodged a complaint of unfair dismissal with a Designated Agent for the National Employment Council Food and Allied Industries. Conciliation failed, and the matter ended up at arbitration, resulting in the arbitral award in contention.

In dismissing the appellants’ (then claimants) claim of unfair dismissal, the arbitrator recognised the employer’s common law right to terminate on notice. His reasoning is clearly reflected on page 6 of the arbitral award:

“I am inclined to dismiss the allegation of unfair dismissal as the terminations were done in terms of Section 12(4) (a) of the Labour Act (Chapter 28:01). This is also in terms of Labour Court judgment in the matter Zuva Petroleum (Pvt) Ltd versus Don Nyamande and Another which confirmed termination of respondents’ contracts of employment on notice. In my view the challenges cited by the  respondent, are valid as the basis of the termination in terms of case law. This position has since been confirmed by Chief Justice Chidyausiku in a Supreme Court judgment on the same matter.”

A reading of the grounds of appeal, the respondent’s heads of argument, and oral submissions made at the hearing of the matter reveals one fundamental issue for consideration in this appeal. It is the question of whether or not the respondent properly exercised the right to terminate the appellants’ employment on notice.

The appellants argued that termination was wrongly done in terms of section 12(4) of the Labour Act [Chapter 28:01] (the Act), as that provision does not create the right to terminate on notice. It only provides for the periods of notice.

The appellants further contended that termination on notice is unconstitutional, as it violates section 65 of the Constitution, which provides for fair labour standards. Section 65 (1) of the Constitution provides:

“Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.”

The appellant also averred that the respondent ought to have complied with retrenchment procedures laid down in the Act, if it was terminating employment for operational reasons.

On the other hand, the respondent averred that what the arbitrator determined was in accordance with the law i.e. upholding the employer’s right to terminate on notice.

The respondent further contended that the fact that it cited operational challenges as the reason for the termination does not take away the right to terminate on notice. The respondent pointed out that it tried to introduce special measures to avoid retrenchment, by reducing working hours. These measures were resisted by the appellants, leaving the employer with no option but to resort to its common law right to terminate on notice.

What has become the locus classicus on the common law right to terminate the contract of employment on notice is the case of Don Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43/15. The Supreme Court made it clear what the meaning of section 12 (4) is. In their grounds of appeal against the Labour Court judgment in that case, the appellants had contended, inter alia, that section 12(4) does not create a right to terminate on notice. This is the same argument the appellants in casu are advancing. The Supreme Court pointed out that the right exists in the common law, not section 12(4). Section 12(4) merely gives effect to that right. CHIDYAUSIKU CJ stated, at pages 10 and 11 of the cyclostyled judgment;

“Section 12(4) of the Act is the section that deals with the concept of termination of employment on notice in terms of a contract of employment. It regulates the period of notice…….

The wording of s 12(4) is so clear that it leaves very little room, if any, for misinterpretation. It governs the time periods that apply when employment is being terminated on notice. It stands to reason that the notice periods do not apply when an employee is dismissed. In instances of dismissal no notice is required. The periods of notice referred to in s 12(4) of the Act can only apply where there is termination of employment in terms of a process involving the giving of notice provided for in a contract of employment.

I accept the appellants contention that s 12(4) does not create a right to terminate employment on notice. Indeed, this contention appears to be accepted by the respondent.

The respondent’s contention is that the right to terminate employment on notice is created by the common law and not by statute or s 12(4) of the Act. It contends that s 12(4) of the Act simply regulates the exercise of that right conferred on the employer by common law.”

In the light of this, it is clear that the right to terminate employment on notice exists in the common law. Reference to section 12(4), such as was done by the arbitrator in his analysis, does not invalidate the exercise of that right. Section 12(4) regulates how it is exercised. If the contract of employment is without limit of time, as in the instant case, the applicable period of notice would be   3 months.

The appellants were at pains to distinguish the Don Nyamande case, supra, from the instant one. They drew what, in my view, is a tenuous, if any distinction at all, on the basis of the Constitution. It is not clear how the constitutional provision cited prohibits the right to terminate on notice. The Supreme Court, on page 11-12 of the Don Nyamande judgment, indicated that this right can be exercised by either the employer or the employee.

The other dimension to the appellants’ case is that the employer should have taken the retrenchment route, if it intended to terminate for operational reasons. In respect of this issue, the background to the Don Nyamande case is instructive. The parties were engaged in retrenchment negotiations, which had reached an advanced stage. In fact, the process had gone as far as the Retrenchment Board. The Supreme Court upheld the right to terminate on notice, notwithstanding that background. The Supreme Court went on to cite, with approval, its earlier decision in Chirasasa and Others v Nhamo NO and Anor 2003 (2) ZLR206. wherein it stated:

“In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calendar month ‘s notice and could exercise it without obtaining prior written approval of the Minister.”  (Underlining added)

The arbitrator cannot be faulted for following an approach set by the Supreme Court, when he upheld the employer’s right to terminate a contract of employment on notice. This is an issue that has been settled by the country’s apex court, in very clear and unambiguous terms. The appellants tried, unsuccessfully, to persuade this court to revisit an issue that has been settled by the Supreme Court. Their appeal cannot be upheld in the circumstances.

It is accordingly ordered that:

The appeal be and is hereby dismissed.

Each party bears its own costs.

Tamuka Moyo Attorneys, appellants’ legal practitioners