Health Maintenance Network Africa (Private) Limited v Gain Ndengwa and 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/112/2025
HARARE, 05 FEBRUARY, 2025 AND 14 MARCH 2025
CASE NO LC/H/966/24
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IN THE LABOUR COURT OF ZIMBABWE	           	JUDGMENT NO LC/H/112/2025

HARARE, 05 FEBRUARY, 2025 AND

14 MARCH 2025                        		                      CASE NO LC/H/966/24

HEALTH MAINTENANCE NETWORK                                       APPLICANT

AFRICA (PRIVATE) LIMITED

GAIN NDENGWA AND  4 OTHERS  			         	  RESPONDENTS

Before the Honourable G. Musariri, Judge:

For Applicant      		- N. Mangoi, Attorney

For Respondents		- E. Chigova, Unionist

MUSARIRI, J:

On the 8th August 2024 Arbitrator NC Mutiba issued an arbitral award in terms of which she ordered applicant to pay respondents retrenchment packages amounting to US$ 28,532.15.  Applicant then applied to this Court for the review of the award in terms of Section 89 of the (1) (d1) Labour Act Chapter 28:01 hereafter called the Act.  Respondents opposed the application.

The sole ground for review read thus

“1.	The 5th respondent (arbitrator) erred and misdirected herself in determining a matter over which she has no jurisdiction, as at law, she has no power to deal with the enforcement of retrenchment agreements or rule over their validity or otherwise of the same in terms of Section 12C (6) Labour Act [Chapter 28:01}.”

The point was elaborated in applicant’s founding affidavit as follows,

“12.	The ground of review is discussed in detail below.

12.1	It is trite law that when employees or their representatives allege that any agreed retrenchment package or minimum retrenchment package has not been paid within the time or as agreed, such employees or their representatives are obliged before proceeding to enforce the package to satisfy the Retrenchment Board to that effect in form of an affidavit in which the extent of non-compliance shall be clearly set forth.

12.2	The law also provides that the Retrenchment board is obliged to notify the employer of the allegation in writing and afford him or her an opportunity to make representations to the Board in writing in rebuttal of the allegation.

12.3	After representation the Board shall issue a non-compliance certificate which will be binding on the employer and the employee or employees concerned.

12.4	Failure by the employer to pay the employees concerned or their representatives, they will be entitled to apply to the Labour court for an order enforcing the package on the basis of the non-compliance certificate.

12.5	In that regard the 5th Respondent upon making a finding that there was an agreed retrenchment which the Applicant had failed to pay as agreed and/ or on time she was obliged to decline jurisdiction and refer the dispute to the Retrenchment board.”

Applicant then prayed that the award be set aside,

In their opposing affidavit respondents replied tersely thus

“Ad Ground for Review

9.	Denied- 5th Respondent as arbitrator had jurisdiction to preside over Applicant’s failure to pay a retrenchment package or part of it despite that 1st, 2nd, 3rd and 4th respondents were already removed from payroll and sent home without any payment.

10.	I was given advice to the effect that once a form of termination fails to comply with re-quisite laws, it becomes unfair termination, it then warrants the interference of a third part, and there was nothing wrong in 5th respondent coming with an award instructing applicant to pay the retrenchment package and salaries.”

Respondents prayed that the application for review be dismissed,

Analysis

In her arbitral award, the arbitrator noted that,

“After a consideration of submissions by both parties it is clear that the claimants were terminated by way of retrenchment as evidenced by the retrenchment letters filed in by the claimants in which the respondent calculated the retrenchment package for each claimant.  This would then bring the issue to be established which will be the enforcement of the retrenchment package.  The retrenchment package is not in dispute but what is in dispute is that after the claimants accepted the retrenchment package offered by the respondent, the respondent did not pay the claimants neither did the respondent made any efforts to pay the package.”

The issue that arises from this observation, the ground for review and response thereto is whether the arbitrator had jurisdiction to deal with the matter.

Section 12C (6) of the Act (introduced by the Labour Amendment Act, 2023) provides that

“(6)	If it is alleged by any employer or employees or their representatives that any agreed retrenchment package or minimum retrenchment package has not been paid within the time or times stipulated or agreed, such employee, employees or their representatives, must, before proceeding to enforce the package in terms of  subsection (7), satisfy the Retrenchment Board to that effect in the form of an affidavit in which the extent of non-compliance shall be clearly set forth, whereupon the Retrenchment board shall notify the employer of the allegation in writing and afford him or her an  opportunity to make representations to the board in writing in rebuttal of the allegation, and if no such representations are received or the board is satisfied that compliance has not been made with the minimum or agreed retrenchment package, the Board shall issue a certificate (hereafter called a ‘none-compliance certificate’ ) to that effect in which the extent of the non-compliance shall be clearly set forth,”

Subsection (7) allows the unpaid employee/s to, upon issue of the non-compliance certificate by the Retrenchment board (RB), apply to the Labour Court for “an order enforcing the package.”

It is clear from the aforegoing that the arbitrator in casu did not have jurisdiction to enforce the agreed retrenchment package.  The power to enforce the package lies firstly with the Retrenchment board.  If the Board’s certificate is not complied with then the respondents may seek

recourse in the Labour Court.  Respondent’s argument that the Designated Agent had jurisdiction in these circumstances is plainly wrong.  Furthermore there was no basis for the Agent to entertain a claim for wages beyond the agreed retrenchment date i.e. 1st May 2023.

Conclusion

The aforegoing analysis shows that the arbitrator did not have jurisdiction to deal with the matter.  Therefore her arbitral award stands to be set aside.

Wherefore it is ordered that,

The application for review be and is hereby granted;

The arbitral award dated 8th August 2024 issued by Arbitrator NC Mutiba is hereby set aside as a nullity; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E