Aleck Magwenzi N.O. v Chapman Golf Club & Gilbert Rwodzi & Eight Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/800/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/800/16

CASE NO. LC/H/LRA/194/16

HELD AT HARARE

ON 11 NOVEMBER & 16 DECEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

ALECK MAGWENZI N.O.					APPLICANT

AND

CHAPMAN GOLF CLUB					1ST RESPONDENT

AND

GILBERT RWODZI & EIGHT OTHERS			2ND RESPONDENT

Applicant							In Person

For 1st Respondent					Mr. Z. Lunga

For 2nd Respondent					Ms. M. Moyo

MURASI J.,

The ghost of the Supreme Court judgment in Don Nyamande & Another vs Zuva Petroleum (Pvt) Ltd S 43/15 and the subsequent promulgation of the Labour Amendment No. 5 of 2015 continue to haunt many a Labour Court Judge. The Supreme Court judgment confirmed an employer’s right to terminate an employee’s employment contract on notice. The Labour Amendment Act sought to address the situation by providing for payment of certain terminal benefits in the amended section 12C. Employers have argued that the Act, in providing for retrospectivity, is ultra vires the Constitution and to this end applications have been made for the Labour Court to refer these matters for determination by the Constitutional Court. Several applications have thus been referred to the Constitutional Court for determination. No such application is before this Court. The application that is before the Court is for the confirmation of a Ruling by the Designated Agent. What the employer is dissatisfied with is the interpretation accorded to section 12C of the Labour Act (Chapter 28:01) by the Designated Agent which was to the effect that a termination in terms of section 12 (4) of the Labour Act entitles an employee to the payment of terminal benefits in terms of section 12C.

The facts in this case show that the employees had their contracts of employment terminated in terms of section 12 (4) of the Labour Act, (Chapter 28:01). The employees argued that though the terminations were lawful, they were entitled to payment of terminal benefits in terms of section 12C of the amended Act. Before the Designated Agent, the employer argued that this was not the case and the employees were not entitled to such compensation. The employer raised the issue of retrospectivity and the incorrect interpretation of section 12 C (2) of the Act before the Designated Agent. The Applicant dismissed the employer’s argument and found in favour of the employees.

During oral submissions before this Court, Mr. Lunga submitted that the interpretation accorded to section 12C by the Designated Agent was not correct. He further submitted that section 12C does not include employees whose contracts were terminated in terms of section 12 (4) of the Act. He further stated that a reading of these provisions clearly showed that whilst it might have been the legislature’s intention to include these employees, the Act had not so pronounced this position in clear terms. Mr. Lunga further argued that even the subsequent amendment of the Act by the Finance Act No. 8 of 2015 had not helped the matter.

Ms. Moyo, for 2nd Respondent, submitted that the provisions imposed an obligation on the employer to pay the terminal benefits as stated in section 12C. To this end, she argued, the employer could not attempt to wriggle out of the legal obligations.

It is apposite that the contentious section be referred to. Section 12C (2) of the amended provides:

“12C Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12 (4a)-

……….

(2) Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called ‘the minimum retrenchment package’) of not less than one month’s salary or wages for every two years of service as an employee ( or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment ( whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12 (4a) (a), (b) or (c), no later than (the) date when the notice of termination of employment takes effect.”

Section 18 of the amended Act provides as follows:

“18. Section 12 of the Labour Act (Chapter 28:01) as amended by this Act applies to every employee whose services were terminated on three months’ notice on or after the 17th July, 2015.”

What has to be determined is whether section 12C as promulgated permits an interpretation to include those employees whose contracts were terminated in terms of section 12 (4) of the Act. Maxwell On The Interpretation of Statutes, Twelfth Edition, has this to say at page 28:

“The rule of construction is ‘to intend the Legislature to have meant what they have actually expressed.’ The object of all interpretation is to discover the intention of Parliament, ‘but the intention of Parliament must be deduced from the language used,’ for ‘it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make law.”

It has also been stated that the interpretation of a statute should not be collected from any notions which may be entertained by the court as to what is just and expedient. Section 18 of the Amendment Act refers to the fact that the provisions of section 12C (as amended) should apply to employees whose contracts were terminated on notice. I have already quoted the provisions of section 12 C (2) above. The sub-section is specific as to which category of employee should benefit from its provisions. These are employees whose contracts are terminated in terms of section 12 (4a) a, b or c. There is no reference to section 12 (4). I am mindful of the historical aspect of the promulgation of the Labour Amendment Act. It is evident from a reading of section 18 of the Amendment Act that the intention was to address the issue of those employees whose contracts of employment were terminated in terms of section 12 (4). However, when regard is had to this fact, the Court should also consider whether the terms of the new section clearly address the issue without extending the meaning to something that cannot be derived from a reading of the section. Lord Reid had this to say in Attorney General for Northern Ireland vs Gallagher [1963] A.C. 349 at page 366:

“But although we have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge….we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.”

What is clear is that the Legislature must have realised the predicament that had befallen employees whose contracts were terminated in terms of section 12 (4) of the Act. However, this category of employees was not included in section 12 C (2) of the amended Act. Do the provisions of section 18 therefore qualify them for such compensation? The heading to section 12 C reads “Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12 (4a).” It has been held that headings cannot control the plain meaning of words in a statute but they may explain ambiguous words or phrases. In Kingdom Bank Workers Committee vs Kingdom Bank Financial Holdings HH 302-11 PATEL J (as he then was) had cause to refer to Bennion, Statutory Interpretation where he quoted the learned author at page 7 of the cyclostyled judgment thus:

“A heading within an Act, whether contained in the body of the Act or a schedule, is part of the Act. It may be considered in construing any provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief, and therefore necessarily inaccurate guide to the material to which it is attached.”

The Learned Judge was of the view that modern judges consider headings not only as their right but their duty to take them into account. He was of the further view that the ‘robust’ approach was clearly an attractive one if one accepts that the entire statute is passed by Parliament including headings inserted for reference purposes. My view is that the words in that provision are clear and unambiguous. The heading itself refers to “Retrenchment” and terminations occasioned in terms of section 12 (4a). There is no mention of section 12 (4) both in the heading and the body of the section. Was this therefore an omission on the part of the Legislature? Was it cured by the provisions of section 18 of the Amendment Act?

It has been stated that courts should as far as possible give a legislative provision its literal and grammatical meaning. Maxwell refers to the case of Miller vs Salomons (1853) 7 Ex 475 at page 30. In that case an Act required Members of Parliament, before voting in the House, to take the abjuration oath in a form which concluded with the declaration that it was taken ‘on the true faith of a Christian’. The court utilised the literal construction which had the effect of excluding Jews from Parliament notwithstanding that the history of the enactment showed that it was intended to test the loyalty and not the religious creed of a member. A reading of section 12 C (2) would accord with the reasoning in the above cited case where a literal construction of the provision would act to exclude employees whose contracts were terminated in terms of section 12 (4) of the Act.

It has generally been observed that it is improper for a court to infer omissions in a statute and seek to ‘read’ the omissions and provide meaning to the statute. To this extent Maxwell quotes Lord Mersey thus:

“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.” (Thompson vs Gould & Co [1910] A.C. 409.)

Case law has also established that a matter not provided for in a statute should not be dealt with merely because there seems no good reason why it should have been omitted and the omission appears in consequence to have been unintentional. The following words of Lord Loreburn L.C. resonate in the following manner in Vickers, Sons & Maxim Ltd vs Evans [1910] A.C. 444 at page 445:

“We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.”

Whilst there was an attempt to recognise the fact that employees whose contracts had been terminated in terms of 12 (4) had not been provided for by way of compensation, the statute providing for payment of compensation clearly excludes them. It is my view that to extend the meaning in section 12C (2) to these employees would be engaging in ‘judicial activism’ or ‘sensitivity’ as some scholars would want to put it. This would be tantamount to writing in words which are not there and I do not see any reason for introducing additional words which are clearly not part of the statute.

What is clear in my mind is that the drafters must have been given instructions to address this issue but did not address it in the manner required. Instead of making provision for compensation for these employees in section 18 of the Amendment Act, the requisite section in the body of the statute should have been so drafted to indicate the legislature’s intention to include the employees. The Transitional Provisions provide for retrospectivity but do not endow the employees with the rights in the body of the Act as expected.

It is my view that this judgment should be brought to the attention of the relevant Minister.

In conclusion, the Court is of the firm view that the provisions of section 12 C (2) of the Act do not apply to those employees whose contracts were terminated in terms of section 12 (4) of the Act.

The Court makes the following Order:

1. The application for confirmation of the Ruling by the Alec Magwenzi N.O. be and is hereby dismissed.

2. The Ruling by Alec Magwenzi N.O. dated 30 May 2016 be and is hereby set aside.

3. There be no order as to costs.

LUNGA GONESE ATTORNEYS-        1st Respondent’s legal practitioners.