CIMAS Medical Aid Society v Betty Bhobho

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/33/22
HARARE, 07 FEBRUARY, 2022
CASE NO.
JUDGMENT NO. LC/H/33/22
CASE NO. LC/H/401/21
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IN THE LABOUR COURT OF ZIMBABWE           JUDGMENT NO.LC/H/33/22

HARARE, 07 FEBRUARY, 2022                          CASE NO. LC/H/401/21

AND  11 FEBRUARY, 2022

CIMAS MEDICAL AID SOCIETY				      Appellant

BETTY BHOBHO                                            	                       Respondent

Before the Honourable G. Musariri, Judge;

For Appellant		:Mr B.S. Ziwa (Attorney)

For Respondent		:Ms T. Barangwe (Unionist)

MUSARIRI, J:

On the 25th August 2021 at Harare the Designated Agent for the NEC Medical and Allied Industry issued a determination.  He ordered Appellant to reinstate Respondent or pay her an agreed retrenchment package in lieu of reinstatement.  Appellant then appealed to this Court against the determination.  Respondent opposed the appeal.

The grounds of appeal were three-fold as follows,

“1.	The Designated Agent misdirected himself when he proceeded to decide the matter on the terms of reference that were not referred to his tribunal for determination.

2.	The Designated Agent erred in law when he failed to find that the Claimant had been given an opportunity to participate in retrenchment package negotiations not only in person but through representation at Works Council.

3.	The Designated Agent erred in law when he failed to find that the Claimant was, at law, sufficiently represented during package negotiations by the Retrenched Cimas Medical Aid Society employee’s representatives.”

1st Ground of Appeal

The Designated Agent captured the main issue before him as whether or not Claimant’s contract of employment was unfairly terminated.  In its Heads of Argument Appellant stated the issue was the alleged unlawful retrenchment of Respondent.  The referral of the matter to the Agent is not filed of record.  Thus it is not possible to say for certain what the terms of reference were.  However I consider that in this matter it does not make a difference as to how the referral was worded.  This will become apparent in my determination of the 2nd and 3rd grounds of appeal.  Further and in any event the ground raises a matter of procedure which should be raised by way of a review rather than an appeal.

2nd and 3rd Grounds of appeal

I consider these two grounds as basically one.  They raise the issue whether Respondent, as employer, complied with the provisions of the applicable law on retrenchments.  Section 12C (1) of the Labour Act Chapter 28:01 provides that,

“ An employer who wishes to retrench any one or more employees shall-

(a)  give written notice of his or her intention-

(I)  to the works council established for the undertaking ……”

It is common cause that Applicant gave notice of the intent to retrench to their Works Council by Memo dated the 16th December 2020.  The memo was copied to several people including Respondent in her capacity as a Workers Committee

representative.  A copy of the notice is filed of record.  I consider the notice as compliant with the first step toward retrenchment under Section 12C.

The second step is set out in section 12C (2) which provides that,

“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 …… shall be paid by the employer as compensation for loss of employment ……..”

(The underlining is for emphasis.)

In casu there are minutes of an Extraordinary Works Council meeting held on Thursday the 17th December at 10 00 hours.  There were employer and employees representatives in attendance.  Respondent was an attendee as a Workers Committee representative.  The employer tabled a proposal apropos the retrenchment package.  The chairman made a counter-proposal.  It was then agreed to meet the following day at 11:00 hours.  The record does not have minutes of further meetings.  However filed of record is a Works Council Consent dated the  29th December 2020.  The contents contain an agreed retrenchment package which was signed on behalf of “management” and “retrenchees.”  The package contained better terms than the minimum retrenchment package in section 12C (2).

The main reason for the Designated Agent’s determination declaimed thus,

“Workers Committee at works council is a representative of all employees   and not intended retrenches.  Because it is an authority it maintains neutrality and form.  Workers Committee members on the works council do not change hats when discussing retrenchments.  Indeed retrenchees need to bring their representatives before the authority, works council.  If a works council agrees that agreement cannot be taken to be an agreement between and employer and the intended retrenchees.

In my opinion it follows therefore that the woks council does not have authority nor does it have mandate to represent employees facing retrenchment.’”

It was on the basis of this reasoning that the Designate Agent found that Respondent was not properly retrenched.

It appears to me that the Agent misapprehended the exact import of the provisions of section 12C.  Whilst the section contemplates agreement between an employer and employees or their representatives, it does not make agreement between the parties the sine qua non of the retrenchment.  Retrenchment under the section can be done upon notice to the works council and the employees.  The only consequence of lack of agreement is that the employer becomes obliged to pay the minimum retrenchment package.  In any event in the present case there was agreement between the parties’ representatives as evidenced by the Works Council Consent.  The agreement obliged the employer to pay double the minimum retrenchment package.  Respondent attended the initial consultations over the retrenchment in the works council meeting on 17th December 2020.  That is the same date of the notice to retrench her.  Her representatives within the works council then consummated the agreement with the employer.  I agree with Appellant that Respondent both participated and was represented in the retrenchment negotiations.  The Designated Agent erred in ruling that the Respondent was not properly/lawfully retrenched.

WHEREFORE IT IS ORERED THAT:

1.	The appeal be and is hereby allowed;

2.	The determination by the Designated Agent (J M Muzadzi) dated 23rd  August 2021 is set aside; and

3.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E