Godfrey Tsatsa & 10 Others v Blue Ribbon Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/153/2021
HARARE, 8 JULY 2021
8 OCTOBER 2021
CASE NO LC/H/163/20
CASE NO: LC/H/163/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/153/2021

HARARE, 8 JULY 2021  &				    CASE NO LC/H/163/20

8 OCTOBER  2021

In the matter between:-

GODFREY TSATSA & 10 OTHERS   		APPELLANTS

And

BLUE RIBBON FOODS LIMITED		RESPONDENT

Before The Honourable Manyangadze J

For Appellants           Mr M. Gwisai (Legal Practitioner)

For Respondent        Ms R. Magundani (Legal Practitioner)

MANYANGADZE J

This is an appeal against the determination of the Designated Agent for the National Employment Council for Food and Allied Industries (NEC), handed down on 30 November 2020. The Designated Agent ruled that he had no jurisdiction to preside over the dispute between the appellants and the respondent, which concerned allegedly unprocedural retrenchment proceedings.

The brief factual background to the matter is that the appellants were employed by the respondent in various capacities. On 30 September 2020, the respondent served the appellants with a notice to retrench, in terms of s12C of the Labour Act, [Chapter 28:01], as amended (the Act), effectively commencing a retrenchment process that would see all the appellants laid off employment.

The appellants lodged a complaint with the NEC, alleging that the retrenchment was invalid, as it did not comply with provisions of s 12C and s12D of the Act. The appellants averred, inter alia, that the consultative process that should have been done under the Works Council was not carried out, and that the whole process was actuated by malice and vindictiveness following the appellants’ insistence on their right to a 10 % shareholding in the company.

The Designated Agent did not go into the merits of the dispute. He declined jurisdiction on the basis that the retrenchment proceedings had been referred to the Retrenchment Board, which was the one empowered to deal with such matters. The Designated Agent made this decision mero motu, as no point in limine had been raised to that effect.

Aggrieved by the Designated Agent’s determination, the appellants noted the instant appeal. The sole ground of appeal is stated as follows:

“The Designated Agent erred in declining jurisdiction in deference to the Retrenchment Board whereas the matter involved an unfair dismissal dispute over which the Designated Agent had jurisdiction in terms of section 63 (3a) of the Labour Act (CAP 28:01) and the Retrenchment Board is not empowered under the Labour Act to determine disputes concerning the lawfulness or fairness of a retrenchment decision/or process undertaken by an employer.”

The appellants’ main contention is that the Designated Agent is empowered by law to redress disputes referred to him within the NEC under which he operates. In this regard, the appellants referred a complaint of unfair dismissal to the NEC, alleging that the retrenchment process the respondent had embarked on was not in compliance with s 12C, s12D and s25 of the Act.

The appellants aver, in paragraph 10.4 of their heads of argument, that the Designated Agent’s powers, provided for in s 63(3a) of the Act, are not limited to any specific form of dispute. They further aver, in paragraph 10.5, that there is nowhere in the Act where the Designated Agent’s powers are made subject to or subservient to those of the Retrenchment Board.

Section 63(3a) of the Act provides as follows:

“A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certificate of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

The Designated Agent in casu, contend the appellants, therefore seriously misdirected himself when he declined jurisdiction in deference to the Retrenchment Board.

On the other hand, the respondent contends that the Designated Agent was correct in holding that he had no jurisdiction to entertain the retrenchment dispute.

The respondent, in paragraph 4 of its opposing affidavit, agrees with the position taken by the Designated Agent that the power to deal with retrenchment issues is vested in the Retrenchment Board. This paragraph expresses the respondent’s position as follows:

“The retrenchment board, being a creature of statute has the legal authority to deal with such matters as will be amplified in heads of argument.”

However, in its heads of argument, the respondent makes a fundamental shift, and bases its opposition on a different ground altogether, not averred in its opposing affidavit. This is despite the fact that it had indicated, in the above-cited paragraph, that it was going to amplify the averment made therein in its heads of argument. No paragraph in the heads of argument adverts to that averment.

The basis of the respondent’s opposition to the appeal has shifted to the averment made in paragraphs 8 – 14 of its heads of argument. It is that the Designated Agent has no powers to review the respondent’s decision to retrench the appellants. The respondent contends that s 63 of the Act does not confer review powers upon the Designated Agent. It is only the Labour Court which can exercise such review powers.

The respondent further contends, in paragraphs 15 – 17 of its heads of argument, that the question of the appellants’ retrenchment is moot, in that they received and consumed the retrenchment packages they were offered by the respondent. No consequences will flow from granting the relief they seek, as the judgment of the court will be rendered academic by what has already transpired. The court should not sit to decide academic points, but must be seized with live disputes. In this regard, the court was referred to the cases of Khupe & Others v Parliament of Zimbabwe CCZ 20/19 and Ngulube v ZESA & Anor SC 52/02.  Again, none of this is in the notice of opposition.

The change in respondent’s line of argument, it seems to me, is an acknowledgement of the difficulty it has  in sustaining the contention that the Retrenchment Board has power to adjudicate on a retrenchment dispute. The current legal position is clearly that it no longer has such power. Reference was made to the case of Banking & Finance Managers Union & Ors v Minister of Public Service, Labour and Social Welfare NO & Anor LC/H/123/17, in which MUCHAWA J and CHIDZIVA J held that the new role of the Retrenchment Board in terms of s 12C of the Act was to receive the Notice of Intention to Retrench from the employer, and also to deal with exemptions from paying the retrenchment package. Both parties also made reference to Mr Caleb Mucheche’s article,  “A legal analysis of retrenchment and termination of employment under the Labour Laws of Zimbabwe ushered in by the Labour Amendment Act, 2015: simplified, seamless and synchronized termination and retrenchment of employees by employers”  -  Zimbabwe Electronic Law Journal Volume II, [2017].  The learned author makes the same observation made by the Labour Court in the Banking & Finance Managers case, supra.

A reading of the Designated Agent’s determination shows that the rationale underlying it is that he had no jurisdiction because the Retrenchment Board was seized with the matter. But, as seen in the foregoing analysis, the Retrenchment Board no longer has jurisdiction to deal with retrenchment, save for a very limited role in applications for exemption. The Designated Agent failed to appreciate this legal position. He thus misdirected himself in a manner that warrants interference with his determination, See Barros & Another v Chimponda 1999(1) ZLR 58.

The other point raised by the respondent need not detain the court. It is that the appeal is moot, because the appellants waived their rights when they received the retrenchment packages offered.  I agree with Mr Gwisai’s submission, made during oral argument, that this point;

“takes us into the merits of the matter... the presumption of waiver is difficult to prove...it is     a question of fact.”

The question of whether or not the appellants can impugn the retrenchment proceedings, in light of the alleged waiver, is one that a tribunal seized with the dispute would have to determine. The tribunal would have to determine whether or not the appellants’ conduct in the circumstances constituted waiver of their right to challenge the retrenchment process. Depending on how this question is resolved, it would also have to determine whether or not the retrenchment process was irregular and amounted to unfair dismissal, having regard to the procedures laid down in s 12C and s 12D of the Act.

This is a dispute the Designated Agent was properly seized with, having regard to the broad powers of redressing disputes conferred by s 63 of the Act. In the circumstances, it is the court’s considered view that the appeal has merit and must be upheld.

In the result, it is ordered that:

The appeal be and is hereby allowed.

The determination of the Designated Agent issued on 30 November 2020 be and is hereby set aside.

The matter be and is hereby remitted to the Designated Agent for a hearing de novo on the merits.

The respondent bears the appellant’s costs.

Matika, Gwisai & Partners,  Appellant’s Legal Practitioners

Scanlen & Holderness, Respondent’s Legal Practitioners