Don Nyamande & Another v Zuva Petroleum (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/347/2014
HARARE, 04 & 20 JUNE 2014
CASE NO.
JUDGMENT NO. LC/H/347/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/347/2014

HARARE, 04 & 20 JUNE 2014		                        CASE NO. LC/H/254/13

In the matter between:-

DON NYAMANDE & ANOTHER					Applicant

And

ZUVA PETROLEUM (PVT) LTD					Respondent

Before The Honorable F.C. Maxwell, Judge

Applicant			R. Matsikidze (Legal Practitioner)

T. Mafongoya (Legal Practitioner)

For Respondent		Mr. I. Chagonda (Legal Practitioner)

MAXWELL J:

This is an application for leave to appeal to the Supreme Court.  This Court allowed an appeal by the Respondent against a decision by an arbitrator in favour of the Applicants.

Applicants were employed by BP Shell as supply and logistics Managers respectively.  Around 20 October 2010 BP Shell sold its services as a going concern to Respondent.  A transfer of undertaking was done in terms of Section 16 of the Labour Act [Chapter 28:01].  On 21 November 2011 Respondent offered Applicants a voluntary retrenchment package which was declined.  On 15 December 2011 Respondent served Applicants with a compulsory notice of intention to retrench.  Negotiations ensued but were fruitless.  The issue was referred to the Retrenchment Board.

On 16 May 2012 the parties were advised to carry out retrenchment negotiations within twenty one (21) days from the date of receipt of the letter from Ministry of Labour and Social Services advising them.  On 18 May 2012 Respondent wrote letters to the Applicants terminating their contracts of employment on notice with effect from 1 June 2012.  Applicants were aggrieved and referred the matter to arbitration.  The arbitrator agreed with the Applicants that their contracts of employment should have been terminated in accordance with Section 12B of the Act.  The arbitrator found that the common law position to terminate an employment contract on notice was ousted with the promulgation of SI 15 of 2006 and Section 12B of the Labour Act [Chapter 28:01].  This Court agreed with the Respondent’s position that Section 12 (4) was applicable in the circumstances as the termination of the contracts of employment was not pursuant to disciplinary proceedings.

Applicants seek to approach the Supreme Court on two grounds.

That this court erred and seriously misdirected itself on a question of law by upholding the termination of Applicants’ contracts of employment on notice and failing to find such termination to be unfair dismissal.

This Court erred and seriously misdirected itself on a question of law in failing to realize as it should have done that Section 12 (4) of the Labour Act [Chapter 28:01] does not provide for termination of a contract of employment on notice and that any such purported termination is contrary to Section 12B of the Labour Act.

In an application of this nature one ought to consider whether there are any prospects of success an appeal.  I am of the view that there is a probability that the appellate court may interpret the provisions of the Labour Act in question differently.  On that basis the application succeeds.

Accordingly it is ordered that leave to appeal to the Supreme Court be and is hereby granted.  Respondent will pay the costs of Applicants employing one legal practitioner.

MATSIKIDZE & MUCHECHE, Applicants’ legal practitioners

ATHERSTONE & COOK, Respondent’s legal practitioners