Natpak V Francis Kunyavapa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/330/2016
HARARE, 19 MAY 2015 & 3 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/330/2016

HARARE, 19 MAY 2015 & 3 FEBRUARY 2016           CASE NO. LC/H/22/14

AND 13 MAY 2016

In the matter between:-

NATPAK				Appellant

And

FRANCIS KUNYAVAPA		Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr. A.K. Maguchu (Legal Practitioner)

For Respondent		Mr. E.E. Matika (Legal Practitioner)

MAKAMURE, J:

This is an appeal against a decision by the relevant National Employment Council (NEC) Appeals Board.

The respondent was employed by the appellant. He was advised that he was due to retire at age sixty-five (p.16). He was later advised that he would retire at age 60.  When he raised a query he was told that his retirement age was sixty.  Being not satisfied with the answer, he raised a grievance with his employer.  A grievance hearing was conducted. The hearing ruled that his retirement age be sixty.  He appealed the decision within the domestic remedies forum.  The appellate tribunal, the NEC Appeals Board, reversed the initial decision and ruled that his retirement age is sixty five.  That aggrieved the appellant leading to the present appeal.

The following are the grounds of appeal:

“1.	The Appeals Board erred grossly both on the facts at and law in finding that there were two (2) valid pension certificates with different retirement dates.

2	The Appeals Board erred grossly on the facts in finding that the Respondent was not informed of the error in the one certificate before his notice of retirement.  In any event such failure to inform had/has no legal effect on the retirement date.

3	The Appeals Board erred at law in determining Respondent’s retirement date on the basis of inconveniences suffered by the Respondent

4	In any event, the finding on inconveniencies is erroneous and even if there were any such inconveniences, Respondent was not innocent of their cause and Appellant was never the cause.

5	The Appeals Board erred grossly both on the facts and at law in finding that one of the Appellant/Applicant’s occupational pension schemes provided and therefore entitled Respondent to retire at the attainment of 65 years.

6	The Appeals Board erred grossly at law in finding that the applicable occupational pension schemes were ambiguous in as far as Respondent’s date of retirement.

7	The Appeals Board erred grossly at law in directing that Respondent should be retired in terms of Statutory Instrument 170/2012, an inapplicable instrument.

8	Generally the Appeals Board erred grossly at law in finding that the Respondent’s retirement age was not 60 years and that instead, he should retire at 65 years.

9	The findings of the Appeals Board set out above are so grossly unreasonable such that no reasonable person properly applying himself to the matter would have made such findings.”

The Appeals Board found that the respondent was not advised about the change of retirement date before he was notified of the impending retirement.  The Appeals Board also noted that one of the company’s occupational pension schemes provided for retirement at the age of 65. The Appeals Board found that the occupational pension schemes created an ambiguity. Consequently the Appeals Board ruled that, in view of the ambiguity of the occupational pension schemes, the appellant should retire at age 65 in terms of S.I. 170 of 2012.

It is an established principle of an law that the law should lean more towards restoring rather than removing a person’s rights. In Transvaal Investment Co v Springs Municipality 1922 AD 337 it was held that:

“It is a well-established rule in the construction of statutes that where the Act is capable of two interpretations that one should be preferred which does not take away existing rights unless it is plain that such was the intention of the legislature”.

In the present case we are not necessarily interpreting statutes but two certificates emanating from the same institution were issued and that created uncertainty requiring the intervention of this court.  The earlier tribunal found that there was some ambiguity in the pension schemes and determined that the appellant should retire at 65.  It appears not to be the respondent’s error that he was issued first with a certificate showing that he would retire at 65 and then another one showing that he would retire at 60.  The NEC having found that there was some ambiguity found in favour of the respondent. The NEC is part of the domestic remedies.  It is conversant with issues at hand.  Where therefore it has made a particular finding, unless the finding is unreasonable, it should not be interfered with.

It would appear that the applicable code does not provide for what happens in a situation where an ambiguity has arisen. The NEC being part of the domestic remedies, made a decision which best solved the problem. It is therefore my considered view that the decision by the NEC is reasonable.   It did not err in its findings in all circumstances.

It is trite that an appeal court does not interfere with the decision of a lower court or tribunal unless the court or tribunal exercised its discretion improperly. Passmore Malimanjani v Central Africa Building Society [CABS] SC 47/07. In Barros & Anor v Chimponda 1991 (1) ZLR 58 (S) the Supreme Court stated that:

“It is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course.  It must appear that some error has been made in exercising the discretion.”

In the present matter the NEC Appeals Board is part of the domestic remedies.  It applies the rules and statutes applicable to the relevant industry on a regular basis. Its findings should therefore be taken seriously and not be unnecessarily overturned.

In the result, I cannot say that there was an error or misdirection by the earlier tribunal, as averred in the grounds of appeal, which warrants interference by this Court.

In view of the foregoing I find that there is no merit in all the grounds of appeal.  The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Munyaradzi Gwisai & Partners, respondent’s legal practitioners