Practical Action Southern Africa v Sylvia N Makomva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/07/2016
HARARE, 23 OCTOBER 2015 &
8 JANUARY 2016
CASE NO LC/H/APP/626/2015
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/07/2016

HARARE, 23 OCTOBER 2015 &			     CASE NO LC/H/APP/626/2015

8 JANUARY 2016

In the matter between

PRACTICAL ACTION SOUTHERN AFRICA			APPLICANT

Versus

SYLVIA N MAKOMVA						RESPONDENT

Before the Honourable R F Manyangadze J

For the Applicant	P Chakasikwa   (Legal Practitioner)

For the Respondent	S Nyagura  (Legal Practitioner)

MANYANGADZE J:

This is an application for stay of execution of an arbitral award, in terms of which the termination of the respondent’s employment was ruled unlawful.

The brief facts of this matter are common cause.

The respondent was employed by the appellant as its Human Capital and Administration Manager. She was so employed in a fixed term contract, which was renewed every two years for a period of eight years. At the end of October, 2013, the appellant notified the respondent that it was not going to renew the fixed term contract at its next expiry date, which was 28 February 2014.

The respondent lodged a complaint with the Ministry of Labour, alleging unlawful termination of her employment contract. Basically, her complaint was that the contract was being terminated in circumstances that amounted to retrenchment, which obliged the appellant to follow the required retrenchment procedures.

The matter eventually went to arbitration, resulting in the contested arbitral award. The arbitrator ruled that termination of the respondent’s employment should have followed retrenchment procedures, and was therefore unlawful.

On 21 May 2015, the applicant noted an appeal in this court, against the arbitral award. This was followed on 27 May 2015, by the filing of an application for interim relief, in terms of section 92 E (3) of the Labour Act, [Chapter 28:01] (the Act).

A reading of the parties’ submissions shows that there is no issue regarding the legal principles governing an application for stay of execution. The requirements are:

The potential of irreparable harm occurring if the application is refused.

The prospects of success on appeal.

The balance of convenience.

The factors are clearly set out in the cases both parties made reference to. There include:

Zimbabwe Open University v Magaramombe & Anor SC 20-2012;

Standard Chartered Bank Ltd v Musanhu SC 122-04; and

Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) 67 (H).

On the possibility of irreparable harm occurring, the applicant contended that if the respondent is paid a retrenchment package, she would not be in a position to refund it if the appeal succeeds. Further to that, the applicant pointed out that since retrenchment procedures are often protracted, it will be forced to keep the respondent in its employment beyond the expiry of her fixed term contract of employment.

In my view, there is considerable merit in this contention. It has not been demonstrated that the respondent will be able to restore the status quo ante if the appeal does not go her way.

On the prospects of success, it is common cause that the contract of employment was a fixed term contract. It is also common cause that it was due to expire on 28 February 2014. The respondent was notified of the appellant’s intention not to renew the contract, more than three months before the expiry date. A misunderstanding arose because the appellant cited, as a reason for its non-renewal of the fixed term contract, abolition of the Human Capital and Administration Manager post. This led the respondent to perceive this as a disguised retrenchment.

It is important, in the circumstances, for the question whether this was a retrenchment or simple termination of a fixed term contract to be decided on appeal, before execution is carried out. This point is well captured in paragraph 9 of the applicant’s heads of argument:

“It would be more appropriate for a determination to be made by this Honourable Court as to whether or not the respondent’s contract of employment terminated by effluxion of time, or whether it is still binding, but subject to the implementation of the retrenchment process.”

In my view, the applicant has met the requirements for the granting of the relief it seeks.

In the result, it is ordered that:

The application for interim relief be and is hereby granted.

Execution of the arbitral award granted in favour of the respondent on 11 May 2015 be and is hereby stayed pending determination of the appeal filed under Case No LC/H/462/2015.

Costs shall be in the cause.

Kantor & Immerman, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners