Leah Chikukwa v Fidelity Printers and Refiners

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/206/2014
HARARE, 10 September 2013
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/206/2014

HARARE, 10 September 2013			              CASE NO. LC/H/191/13

& 11TH APRIL 2014

In the matter between:-

LEAH CHIKUKWA							Appellant

And

FIDELITY PRINTERS AND REFINERS			Respondent

Before Honourable B.S. Chidziva, Judge

Appellant			In person

For Respondent		Mr. W. Magaya (Legal Practitioner)

CHIDZIVA J:

The brief history of this matter is that the Appellant was employed by the Respondent was voluntarily retrenched.  She signed for the package in 2010.  On the 8th of November 2012 she then raised a complaint with the Provincial Labour Officer stating that the Respondent owed her some money as there were several discrepancies’ in the retrenchment payments.  The matter was referred for arbitration to Honourable C.H. Mucheche who handed down the following award on the 21st of February 2013.

“IT IS ORDERED THAT

The points in limine on prescription and multiplication of proceedings are hereby dismissed for want of merit.

The claimant cannot resile from the retrenchment agreement.

The respondent did not commit an unfair labour practice on retrenchment.

The respondent is hereby ordered to pay the claimant long service award within (7) days of this award failure of which either party can revert to the arbitrator for quantification of same.

Each party will meet its costs.

Arbitration costs will be borne by both parties equally.

The Appellant’s grounds of appeal are that;

The Respondent did not act with utmost good faith when employees were asked to go on voluntary retrenchment on the basis that the company had no capacity to pay salaries and yet institute a fourfold salary increase within a period of two months after my departure.  I feel cheated.  I would not have volunteered to go on retrenchment had I known that the company could afford to pay higher salaries.

Unlike Lytton Shumba, I am not seeking to be reinstated at Fidelity Printers and Refiners but the institution of my fundamental rights against discrimination and to fair labour standards.

I did not deliberately go mute for two years.  I only became aware, in 2012.that the Respondents:

Converted allowances to salaries and increased them by four times.

Discriminated against me when a male colleague in the same grade as me was paid a higher retrenchment package.

Did not make pension contributions since the introduction of the multi-currency system in early 2009, thereby prejudicing me of my lifelong pension receipts.

I only became aware of the dispute in 2012.

The Arbitrator did not take into account the fact that a pension is paid by a separate Authority from the Respondent and it is consequent to retrenchment.  Thus my right to a fair and reasonable pension cannot be waived by acceptance of a retrenchment package.

By ordering the Respondent to pay me long service award, the arbitrator contradicted himself and set a precedent that an employee’s right cannot be waived in a dispute of a continuous nature.  Consequently, he should have ruled the same on my company vehicle claim.”

In the circumstances the Appellant prayed that the Arbitrator’s claim should be set aside and be substituted with an appropriate order.

The Respondent in response told the court that;

Grounds of appeal 1, 2, 6 and paragraphs a-d of 3 are not points of law. Appeal against the decision of the Arbitrator can only be on points of law.

The Learned Arbitrator’s reasoning is sound and is based on legal principles enunciated by the Superior Courts.

There is no discrimination to talk about as each employee signed his/her own retrenchment agreement and the fact that Appellant signed the agreement means she also waives her right to challenge the package.

There is no contradiction in the award.   The award of a long service award was made with the consent of both parties and the Arbitrator had to endorse the agreement arrived at after the concession.

The issue of the pension did not arise anywhere in the award and cannot be raised on appeal.  In any case Appellant’s claim for pension must be directed  to the relevant authorities not the employer.

Appellant has not laid a basis for this Court to interfere with the award which is well reasoned.

Points 1, 2, 3 and 6 are not points of law but fact Appeals to the Labour Court are only on points of law and not fact.

Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 on points of law had this to say

“The phrase “question of law” has three distinct, though related meanings:

a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit, in accordance with what is considered to be the truth and justice of the matter.

a question as to what the law is.  An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter.

a question which is within the province of the judge instead of the jury.  Grounds 1, 2, 3 and 6 have not raised a question of argument and determination on what the true rule of law is on a certain matter.”

The other issue to be decided is whether the Appellant can resile from the retrenchment package she agreed to.  The Appellant was retrenched in 2010.  She agreed to the package and received payment.  It is only after (2) two years that she has come up with issues of unfair labour practice.  In the case of Chidziva & Ors vs Zisco Ltd 1997 (2) ZLR 368 on the issue of waiver of rights Korsah JA had this to say.

“The conduct of the majority of the retrenchment employees by accepting the retrenchment package, was inconsistent with the enforcement of the right to have the matter referred, in terms of Section 3 (6) of the Regulation to the retrenchment Committee, and clearly evinced an intention to surrender that right.  The respondent acted upon their intention to accept the retrenchment package and paid to them the benefits of the agreed package.  With acceptance of such payment the rights of the appellants perished”

In the case of Nobert Mutandwa vs Marondera Builders Merchant LC/H/05/2009 Honourable B.T. Chivizhe on waiver of rights stated that;

“I am persuaded by the respondent’s submissions that by accepting terminal benefits in the circumstances amounts to a waiver of one’s rights.  The acceptance of terminal benefits is an act inconsistence without intention to continue the employer – employee relations.”

In this case it is very apparent that by signing the retrenchment package and receiving payment the Appellant by so doing expressed that she no longer wanted to continue the employer – employee relationship.  She voluntarily terminated employment she therefore cannot turn around after two years claiming that the respondent owed her something.  She therefore waived her rights to a legal remedy.

The issue of pension as rightly pointed out by the respondent was not placed before the arbitrator hence the arbitrator could not make a ruling on it.  During the arbitral proceedings the respondent conceded to the claim of long service award and thus the arbitrator ordered the Respondent to pay same.

After a careful consideration therefore this court finds that the appeal lacks merit.

Accordingly

IT IS ORDERED THAT

The appeal be and hereby dismissed.

Coghlan, Welsh & Guest, Respondent’s legal practitioners