Church of the Province of Central Africa Anglican Diocese of Masvingo v Nemrod Gwende and 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/567/2016
HARARE, 20 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/567/2016

HARARE, 20 JULY 2016			          	       CASE NO. LC/H/728/15

AND 23 SEPTEMBER 2016

In the matter between:-

CHURCH OF THE PROVINCE OF CENTRAL AFRICA		Appellant

ANGILICAN DIOCESE OF MASVINGO

And

NEMROD GWENDE AND 4 OTHERS					Respondents

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr S Mpofu (Legal Practitioner)

For Respondents		Ms S Chihombe (Trade Unionist)

MAXWELL, J:

This is an appeal against part of the decision of the honourable Arbitrator dated 4 June 2015.  Respondents who had been employed by appellant had their contracts of employment terminated.  1st Respondent’s letter of termination dated 22 March 2013 on record states that the contract would not be renewed because the workload has decreased.  He was given three months notice from 1 April 2013 to 30 June 2013.  The respondents refused to sign the letters of termination.  Nevertheless the respondents were dismissed and the matter was referred to the National Employment Council for the Welfare and Educational Institutions.  Respondents claimed that Appellant should have followed retrenchment procedures.  Appellant argued that the termination was done in terms of the Labour Act [Chapter 28:01], Section 12B and later Section 12 (4) (a).  The arbitrator ruled that the respondents be reinstated and the parties negotiate on the termination method.  She ordered that if reinstatement with full pay and benefits is not possible, parties were to negotiate for damages in lieu of reinstatement or refer the matter to the arbitrator for quantification.

Appellant was aggrieved and on 6 August 2015 noted an appeal to this court on the following grounds;

The honourable Arbitrator erred in finding that the type of termination of the employment relationship had to be agreed upon.

The arbitrator grossly misdirected herself as to amount to a misdirection on the law in finding that termination on notice was not valid because 1st and 4th respondents had not accepted the notices.

The arbitrator erred in finding that he was not bound by the reasoning in Zuva Petroleum v Don Nyamande and Another LC/H/254/13.

A fortiori the Arbitrator grossly misdirected herself in failing to stay proceedings pending finalisation of the Supreme Court matter if she was convinced that the Zuva Petroleum decision had a bearing on the case before her.

Appellant prayed for the setting aside of the arbitrator’s decision and its substitution with a dismissal of the claim.

In response respondents stated that their contracts of employment were not terminated on notice but through retrenchment which was not procedurally done.  They further stated that the Arbitrator was not bound by the Labour Court decision as the facts before her were totally different.  They prayed for the dismissal of the appeal for lack of merit.

In my view the sole issue for determination in this case is whether or not the arbitrator was correct to disregard the decision in Zuva Petroleum v Don Nyamande and Another LC/H/254/13. I am of the view that the arbitrator arrived at the right decision for the wrong reasons.  It is not correct that a judgment on appeal should be disregarded.  Until a higher court has set it aside, an inferior tribunal is bound.  However the circumstances of this case justify a departure from the position in the Zuva Petroleum case. As argued for the respondents the facts of this case are totally different from those in the Zuva Petroleum case.  The letter of termination is very revealing and cannot be ignored. Appellant stated in the letter.

“We are unable to review your contract because our workload has decreased.” (Underlining for emphasis)

It seems to me respondents’ representative is correct in her submission that appellant embarked upon a retrenchment exercise which was not properly done.  Section 2 of the Labour Act [Chapter 28:01] states that,

“retrench, in relation to an employee, means terminate the employee’s employment for the purpose of reducing expenditure or costs, adapting to technological change, reorganizing the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

I find that what appellant did fits snuggly in the definition of retrench given above.  Once mention of “decreased workload” was made, appellant was bound to follow the procedure laid out in section 12C of the Labour Act [Chapter 28:01].  It is common cause that the retrenchment procedures were not followed.  The termination of the respondents’ contracts of employment was therefore flawed.  The arbitrator was correct to order their reinstatement.  Accordingly the following order is appropriate;

The appeal be and is hereby dismissed for lack of merit.

Munangati & Associates, appellant’s legal practitioners