Priscilla Mgazi (Labour Officer) v Melusi Khumalo & Feba Radio Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/191/2023
HARARE, 13 FEBRUARY 2023 & 5TH,
JULY, 2023
CASE NO LC/H/626/22
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 13 FEBRUARY 2023& 5TH,
JULY, 2023

JUDGMENT NO LC/H/191/2023
CASE NO LC/H/626/22

In the matter between:-
PRISCILLA MGAZI (LABOUR OFICER) APPLICANT

MELUSI KHUMALO 1st RESPONDENT

FEBA RADIO ZIMBABWE 2nd RESPONDENT

Before the Honourable Kachambwa J

For the Applicant K. Madzika

For the Respondent R. Matsikidze

KACHAMBWA, J:

THE APPLICATION

1. This is an application by a labour officer for the confirmation of a ruling made by the officer. It is in terms of section 93 (5) (a) and (b) of the Labour Act, Chapter 28:01 (hereafter referred to as the Act).

THE BACKGROUND OF THE RULING

2. The 1st respondent claimed that he was employed by the 2nd respondent as a country director in November 2018. There was no written contract. He managed the 2nd respondent’s business on a daily basis. He was not paid any salary or wages at all. After 6 months, which he said was the probation period, he wrote to the 2nd respondent suggesting his conditions of employment including a salary of USD 3500.00. The 2nd respondent did not respond to the proposal. The 1st Respondent continued working without any payments. On September 15th 2020 the 2nd respondent gave notice of termination of employment in the following terms:


“As you are aware, Feba Zimbabwe has ceased to operate as an organization in Zimbabwe. Given these prevailing circumstances we are hereby giving you 3 months’ notice to terminate your current contract starting 1 November 2020.”

3. The 1st Respondent argued that this type of termination of his contract was a retrenchment as per the definition of retrenchment in the Labour Act, section 2, thereof, which says that:

“Retrench”, in relation to an employee means terminate the employee’s employment for the purposes of reducing expenditure or costs, adapting to technological changes, reorganizing the undertaking in which the employee is employed, or for similar reasons, which includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

4. On the other hand the 2nd respondent said that the 1st Respondent was a volunteer. He could not be employed permanently because he was permanently employed by a church. He was offered accommodation in return for his voluntary services. There was no basic salary. He was supposed to generate revenue on his own as the 2nd respondent was facing financial difficulties. His proposal remained a proposal since it was not taken up.

**THE LABOUR OFFICER’S RULING**

5. The labour officer ruled that in the circumstances the respondent was retrenching an employee. The letter of termination spoke of retrenchment. The complainant had made a proposal and continued in employment. The respondent had a duty to respond. The silence and continued employment meant acceptance of the proposal. Consequently the respondent had to pay the complainant for the 26 months of employment at the proposed rate of USD 3500.00. This gave a total of USD 91 000.00. As the company had closed, the labour officer also ruled that the respondent pays the minimum retrenchment package of two weeks’ salary for every year served. He also ruled that any moneys that may have been paid by the 2nd respondent could be deducted.

**THE POSITION OF THE RESPONDENTS**

6. The parties maintained their positions as before the labour officer with the 1st respondent supporting the ruling while the 2nd respondent opposed it. The second respondent also argued that the ruling was defective as it was not quantified and therefore cannot be registered. As such it should not be confirmed or amended. Authorities cited include 1. *Air Zimbabwe (Private) Limited v Mateko SC180/2020. 2. Isoquant Investments (Pvt) Ltd t/a Zimoco vs Darikwa CCZ6/2020. 3. Toobias Zangairai vs Zimbabwe Revenue Authority & Another SC113/2021. 4. Zimbabwe Sun Hotels vs Lawn 1988(1) ZLR 143(SC). 5. Ashanti Goldfields Zimbabwe vs Jafati Mdala SC60/2017. Referring to these cases the 2nd Respondent*
 argued that the draft ruling was defective in that it was not quantified on the retrenchment portion of the award and consequently it cannot be registered for execution. That being so it should not be confirmed. It was argued that it could not be amended either. The Labour Court should confine itself to refusing to confirm the ruling. It was further argued that there was no employer/employee relationship, particularly so in view of the absence of an agreed salary.

7. The 1st Respondent was of the view that the Labour Court was at liberty to amend or even substitute the draft order. Such a course was said to be in keeping with the fact that confirmation proceedings are in fact the first time that the matter is being heard in the legal sense, that even as seen as a review the court is at large to substitute the draft ruling. Cases referred to include 1. Crispen Vundla vs InnsCor Africa Bread Company (Private) Limited SC87/2021. 2. Willmore Makamure vs Minister of Public Service, Labour and Social Welfare and Another CCZ01/2020. It was also argued that in any case the order was in order since the quantity could easily be ascertained using the formulae laid out. As for the contractual terms it was said that these needed not to be in writing. By continuing with employment the 2nd Respondent was said to have agreed to the terms as proposed. It was also said that there was a duty to respond if the proposal was not agreeable.

**ANALYSING THE ARGUMENTS**

8. The issue of the nature of confirmation proceedings has certainly made its rounds in our courts for a while now. Decisions seem to be going forwards and backwards…..three steps forward four steps backwards maybe. It seems agreed that these proceedings are a compound procedure encompassing a review, an appeal and a fresh hearing. These are the pronouncements that we find in the cases cited by the parties and in even others not cited here. Thus we have on one hand proceedings that are a fresh hearing with evidence being called if need be. Normally that should end with a decision in terms of the evidence led otherwise what is the point of going through all that? On the other hand we have a review where one expects that a decision would be made in terms of the facts and the law and the matter is resolved in that way. We have a line of cases saying that the draft ruling can be confirmed with minor amendments but certainly without any substitution. If the decision is so wrong such that it cannot be cured by a minor amendment the court should refuse to confirm and even leave the parties without a remedy (Zangairai case supra). On the other hand we have decisions that are saying that in review the correct decision reflected by the facts should be substituted otherwise what would be the point in carrying out the exercise? (Crispen Vundla case supra). Both groups of cases refer to the Isoquant case but that case neither discussed nor decided the issues of amendment or substitution.

9. Whichever way we go, litigants come to court to have their matters resolved. Legislation is put in place for that purpose. It is difficult to understand how the court can fail to upset and substitute the decision of a labour officer who never adjudicated the matter. How can the court send the parties away without a solution and without any recourse? Surely that cannot be the intention of the legislature.

10. It is rather disquieting that the parties are in apparent agreement that 1st Respondent was paid some moneys and yet the details are not provided. This money has to be deducted from any further payments that may be awarded.

**ANALYSING THE DRAFT RULING**

11. The finding that there was an employer employee relationship seems well found. The employer confirms it on termination, for that matter. It must be accepted that the employer had all the opportunity to put the record straight as the dominant party and yet did not. Certainly it cannot take advantage of that. The issue of salary is also apparently in order. This is the only figure offered between the parties.

If the 2nd Respondent was not in agreement it had the opportunity to say so but did not neither did it stop the 1st Respondent from any further engagement. All that was within its power and expectations. Therefore indeed the 1st Respondent deserves to be paid from beginning to the last day of work.

12. On the issue of retrenchment this comes from the reason for terminating the employment. It is retrenchment in terms of the Act as pointed out by the applicant, the labour officer. The procedure for retrenchment was not followed and can no longer be followed since the employer has closed shop already. Therefore it makes sense to award the minimum retrenchment package. One could have taken caution by giving the parties an option to negotiate the package but this is unlikely to produce any positive results. The period of 26 months is apparently in order. That is two years and two months. Thus on the formula of two weeks for every year worked it comes to four weeks for 24 months of pay plus the fraction of the remaining 2 out of 12 months. The parties should be able to work out the amount and thereafter take into consideration any moneys already paid. It is necessary to allow the parties to work out the balance of the payments as no information is available on how much was paid.

**DISPOSITION**

13. From the foregoing it follows that the draft ruling will be confirmed with an amendment. The ruling is accordingly confirmed as follows:

13.1 The 2nd Respondent be and is hereby ordered to pay the first respondent 26 months salary at the rate of USD 3500.00 per month. Total is USD 91 000.00 payable in USD or local currency at the applicable bank rate on the day of payment. The 1st Respondent may register this part of the award for execution separately.
 13.2 The 2nd respondent be and is hereby ordered to pay the minimum retrenchment package for the 26 months at the rate of two weeks’ pay for every year of employment. The 2nd Respondent may deduct any moneys already paid to the 1st Respondent.

13.3 If there is no agreement on the quantum payable in terms of clause13.2 either party may approach the court for quantification.

Munangati and Associates, 1st Respondent’s Legal Practitioners

Matsikidze Attorneys at Law, 2nd Respondent’s Legal Practitioners
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