NMB Bank Limited v Ashton Kupara and 25 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/62/22
HARARE, 24 FEBRUARY, 2022
CASE NO. LC/H/499/21
JUDGMENT NO. LC/H/62/2022
CASE NO. LC/H/499/21
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO.LC/H/62/22

HARARE, 24 FEBRUARY, 2022                       CASE NO. LC/H/499/21

AND 11 MARCH,2022

NMB BANK LIMITED						         Appellant

ASHTON KUPARA AND 25 OTHERS     		                   Respondent

Before the Honourable G. Musariri, Judge;

For Appellant		        - Mr L. Uriri (Advocate)

For Respondents   		-Mr T. Marimo (Unionist)

MUSARIRI, J:

On the 21st September 2021 at Harare the Designated Agent (DA) of the NEC Banking Undertaking made a determination.  He set aside the terminations of Respondents’ employment by Appellant.  He further ordered Appellant to either reinstate the Respondents or alternatively pay them damages in lieu of   reinstatement.  Appellant then appealed to this Court in terms of Section 92D of the Labour Act Chapter 28:01 hereafter called the Act.  Respondents opposed the appeal.

The grounds of appeal were four-fold as follows

“1.	The designated agent erred in law and grossly misdirected himself in not finding that the appellant’s termination of the respondents’ contracts of employment on notice was lawful.

2.	As an alternative to 1 above, the designated agent erred in law and grossly misdirected himself in finding that section 12 (4a) of the Labour Act (Chapter

28:01) out laws termination of employment on notice in the manner followed by the appellant in casu.

3.	The designated agent erred in law and grossly misdirected himself in finding that the appellant’s termination of the respondents’ contracts of employment on notice was a disguised retrenchment in circumstances where there was no factual basis for that finding.

4.	The designated agent erred in law and grossly misdirected himself in not finding that by accepting, terminal benefits of employment and/or by their undue delay in challenging their terminations of employment, the respondents had waived their right to raise a dispute arising from the termination of their employment.”

I consider that these diverse grounds raise basically 2 (two) issues.  I will deal with those issues ad seriatim.

1.	Whether Appellant lawfully terminated Respondents’ employment by notice.

A copy of the letter of termination dated the 12th October 2020 is filed of record.  The relevant part reads

“We advise that the Bank has terminated your contract of employment on three months’ notice with effect from 1 November 2020.  The Bank has waived the notice period and will instead pay you in lieu of the notice.  You will also proceed on paid leave for the month of October 2020 with effect from 12 October 2020.”

Again in this Court counsel for Appellant submitted that the terminations were on notice and that the Appellant exercised its common law right to terminate employees on notice.   Indeed such right existed under the common law.  That much was pronounced in the case of  Nyamande v Zuva Petroleum

2015 (2) ZLR 186 (5) 194 E where Chidyausiku CJ as he then was, stated that,

“Section 12 (4) of the Act can only have meaning if there is a substantive right, in this case the common law right to terminate employment on notice, to which it pertains.  This is especially so when one considers that all that S12 (4) of the Act does is to facilitate the exercise of an existent common law right.”

However soon after this pronunciation by the judiciary, the legislature intervened by promulgation of Act 5 of 2015 which through its Section 4 introduced Section 12 (4a) of the Act which provides that,

“No employer shall terminate a contract of employment on notice unless-

(a)	the termination is in terms of an employment code or in the absence of                 an employment code, in terms of the model code made under Section 101 (9); or

(b)	the employer and employee mutually agree in writing to the termination of the contract; or

(c)	the employee was engaged for a period of fixed duration or for the performance of some specific service; or

(d)	pursuant to retrenchment in accordance with Section 12C.”

The provision is cast in peremptory terms.  In other words the employer’s common right to terminate an employee on notice is now governed by the said subsection (4a).  The right can only be lawfully availed within the 4 scenarios set out.  The termination in the present case does not fall within any of the scenarios from paragraph (a) through to (d).  Indeed Appellant did not seek to fit its actions within any of the scenarios.  It maintained that notwithstanding the new subsection (4a) it still retained a right to terminate on notice.  I respectfully disagree.  The wording of the subsection is clear and concise.  It subjects the exercise of the employer’s right to terminate employment on notice to the ambit of its paragraphs.   Termination outside that ambit is thus unlawful.  The Designated Agent was correct to conclude that Appellant’s termination of Respondents’ contracts of employment was unlawful.

2.	Whether Respondents waived their right to challenge the termination of their employment.

Appellant’s Heads of Argument put the point thus,

“24.	In casu these can be no reasonable doubt that the respondents knew what they were doing: they accepted payments by the Appellant in full and final settlement of all their employment related rights.  It is a classical example of waiver.

25.	The Designated Agent ought to have found that the Respondents waived their rights.”

As regards waiver, the Designated Agent relied on the case of

Choga v Johnston’s 1998 (2) ZLR 560 at 565 D where Chatikobo J, as he then was, stated,

“I perceive the words, I have emphasised to mean, in modern or local parlance, the issue of waiver or acquiescence or consent does not arise where the act complained of is a nullity.  It is only in respect of acts which are voidable on account of irregularities committed by an authority who had the power to act, that the person affected by the decision can elect to waive the irregularity or consent to or acquiesce in the unfair treatment.”

Termination on notice by the employer outside the ambit of Section 12 (4a) of the Act is prohibited per the clear wording of the provision.  Any purported termination notice which fails to comply with the provision is therefore a nullity.  Choga’s case is authority for the ruling that waiver does not arise in the circumstances of this case where the terminations of employment amounted to a nullity.

All in all I conclude that the Designated Agent’s determination is supported by both statute and precedent.  The appeal against the determination is devoid of merit.  Perforce it must be dismissed.

Wherefore it is ordered that:

1. The appeal be and is hereby dismissed; and

2.  Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E