Ronald Vimbiso v Dairibord Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/256/16
HELD AT HARARE ON 20th JANUARY, 2016
CASE NO. LC/H/190/15
JUDGMENT NO. LC/H/256/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/256/16

HELD AT HARARE ON 20th JANUARY, 2016     CASE NO. LC/H/190/15

AND 22nd APRIL, 2016			 	     X REF: LC/H/APP/127/15

In the matter between:-				     X REF: LC/H/APP/331/15

X REF: LC/H/APP/906/14

RONALD VIMBISO							    Appellant

And

DAIRIBORD ZIMBABWE						    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr M. Zenda (Legal Practitioner)

For Respondent	:	Mr A.K. Maguchu (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award.

The terms of reference to the Arbitrator were to consider whether or not the Appellant was lawfully retrenched and if not lawfully retrenched whether he should be reinstated to his former post or be paid damages.

The Arbitrator ruled that Appellant was not retrenched but had taken early retirement.  This ruling aggrieved the Appellant hence this appeal.

By considering whether Appellant had been retrenched or not and finding that Appellant had not been retrenched but retired, did the Arbitrator misdirect herself?  I do not think so in view of the evidence filed of record.

It is common cause that the Appellant was in Respondent’s employ as a manager.  Respondent had a retirement policy which in terms of clause 8.1 the retirement age was 60 years.  In terms of this policy, Appellant was due to retire at the end of 2013, by December 2013 to be precise.  In terms of the same policy, an employee could go for early retirement.

Appellant was a member of and held shares in the Dairibord Employee Share Ownership Trust (DESOT).

On some date before the 20th March, 2013, Appellant wrote a letter addressed to the Chairman of DESOT, (Annexure C, Record page 39) advising him of his intention to dispose of his shares.  As his reason for disposing of the shares, Appellant wrote,

“The reason being I am now retiring and I need this cash to complete building my house which I am retiring  to………” (Emphasis added)

By a letter dated the 20th March, 2013 the DESOT Secretary responded to Appellant’s letter advising him of the assistance they would give in selling the shares by the 21st May, 2013.

It was not in dispute that by the 1st June, 2013 Appellant left Respondent’s employ together with other retirees after clearing his personal items from his office.  He left for the United States of America and only returned in October, 2013.  It was also not disputed that when he returned he did not report for duty as expected of an employee.  Instead he asked for the balance of his terminal benefits.

Another fact which was not disputed, was that on 3rd December, 2013, Appellant attended a Retirees Award Ceremony and received retirement benefits.

With all this factual evidence placed before her, I find that it was proper for the Arbitrator to consider whether there had been retrenchment or not before considering whether the “retrenchment” was lawful or not.  In view of the evidence before her and the definition of retrenchment as provided in the Labour Act [Chapter 28:01] which the Arbitrator correctly articulated and found that there was no retrenchment but early retirement her findings are unassailable.

The pay advise slip produced before me on the 20th January, 2016 is of no consequence despite the fact that on it is endorsed “retrenchment package”.

I find no misdirection on the part of the Arbitrator and to that end, there is no basis for me to interfere with her findings and award.

Consequently, it is ordered that the appeal be and is hereby dismissed.

Hungwe & Partners – Appellant’s legal practitioners

Dube, Manikai & Hwacha – Respondent’s legal practitioners