Roselyne Dzapatsa & 9 Others v Frog Cables

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/296/20
HARARE, 24 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO. LC/H/296/20

HARARE, 24 MARCH 2016                                    	    CASE NO. LC/H/1113/15

AND 4 DECEMBER 2020

In the matter between: -

ROSELYNE DZAPATSA & 9 OTHERS                                        Appellant

And

FROG CABLES                                                                           Respondent

Before Honourable B.T. Chivizhe, J:

For Appellant		Mr S. Banda (Legal Practitioner)

For Respondent		Ms L. Shambamuto (Legal Practitioner)

CHIVIZHE, J:

The judgement was prepared in 2017. It was not handed down. I extend my sincere apologies to the parties for the delay. This is an appeal against on arbitral award handed down by Honourable S. Mugumbi on the 3rd of December, 2015. The operative part of which reads as follows;

“I therefore accordingly, dismiss the claims in toto. All claims must fail.

This will be my award”

The material background facts are as follows;

The Appellants were all employed by the Respondent in various capacities. They were all engaged on the basis of open-ended contracts i.e. contracts without the limit of time. The Respondent in 2015 was facing challenges due to the economic meltdown associated with that period. The Respondent initiated mitigation measures to alleviate the situation. The Respondent introduced two measures i.e. short time as provided in the Industry Regulations and a voluntary retrenchment program. To that end Respondent on the 2nd of March 2015 wrote to all employees advising of the introduction of short time and to other the alternative of voluntary retrenchment. The employees were in the letter invited to indicate whether they were accepting or rejecting the offer. Some employees opted to do short-time and were thus retained. The Appellants as a group purportedly accepted the voluntary termination. They were consequently paid off in line with the termination agreement. After receiving the termination benefits the Appellant then referred a claim to the Labour Officer. They were alleging unlawful termination. When the parties failed to conciliate the matter was referred to compulsory arbitration.

The terms of reference before the Arbitrator were for the Arbitrator to determine;

Whether or not the complainant’s employment contracts were unlawfully terminated.

Appropriate remedy.

The Arbitrator after considering the submissions by the parties and the evidence in the record came to the conclusion that the Respondent properly terminated the Appellant contracts of employment. The Respondent had been facing viability issues and opted to retrench its employees. The Arbitrator however found that the Respondent had cut corners in the process of retrenching the Appellant. He however found that on the basis of Appellants acceptance of their reduced terminal benefits he could not interfere with the process. He also found that there was no unlawful termination of employment on the basis that the Appellant freely and willingly accepted the termination conditions. Having willingly accepted the Appellants waived their right to challenge the process. The Arbitrator in the final analysis dismissed all the Appellants claims.

The Appellants were aggrieved by the award. They noted the present appeal. Their basis of appealing is as set out in their grounds of appeal which reads as follows;

“GROUNDS OF APPEAL

The learned Arbitrator misdirected himself in failing to appreciate that the Appellants never accepted Respondent’s offer, which misdirection is so gross as to amount to a question of law;

The learned arbitrator erred and misdirected himself in finding that Appellants had waived their right to challenge the retrenchment package when such waiver had not been proved by Respondent as required by law;

The learned arbitrator erred and misdirected himself in upholding the termination of the Appellant’s contracts while at the same time accepting that such termination had been in terms of the law.

Alternatively, and in any event; the learned arbitrator erred and misdirected himself in giving effect to an illegal agreement;

The learned arbitrator misdirected himself both in fact and law in finding that an acknowledgement of receipt amounted to acceptance of an offer, which misdirection amounts to an irregularity vitiating the entire award.

WHEREFORE the Appellant prays for relief in the following terms:

The appeal be and is hereby allowed with costs.

The decision of the Arbitrator be and is hereby set aside and substituted with the following:

The termination of the Claimants’ contracts be and is hereby declared unlawful.

The Claimants be and are hereby reinstated into Respondents employ. If reinstatement is no longer tenable, Respondent to pay damages in lieu of reinstatement.”

The Respondent has taken a point in limine that no issues of law having been raised by the appeal there is consequently no appeal before the court. The point is with respect not with merit. An appeal against the decision of an Arbitrator is governed in terms of Section 98 (10) of the Labour Act [Cap 28:01]. It is important to interrogate the law as regards what constitutes “a question of law”. The leading case in our jurisdiction is Muzuva vs United Bottlers (Private) Limited 1984 (1) ZLR 217 (SC) where Gubby CJ (as he then was) held that,

“The twin concepts, questions of law and questions of fact, were considered in depth by E.M.  GROSSKOPF  JA in Media Workers Association of South Africa and Ors v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A). Approving the discussion of the topic in Salmond on Jurisprudence 12 ed at 65-75, the learned JUDGE OF APPEAL pointed out at 795 D-G that the term question of law is used in three distinct though related senses. First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second, it means a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. And third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”

The meaning of a question of law has been further extended over the years e.g. in the case of National Foods vs Mugadza SC/05/1995 the court held that if there is a serious misdirection on the facts that amounts to misdirection in law. In Chinyanga vs Jaggers Wholesalers SC 24/03 the court held that a serious misdirection on the facts amounts to misdirection on the law if it is so unreasonable that no sensible person applying his mind to the fact would have arrived at such a consideration.

I am satisfied on the basis of the authorities that the grounds of appeal do raise questions of law. In ground number 1 for an example the Appellant alleges that the Arbitrator misdirected himself on the facts in reaching the conclusion that the Appellants accepted the Respondents retrenchment offer Appellants alleges that such misdirection was so gross as to amount to a question of law. In the second ground the Appellant alleges that the Arbitrator misdirected himself at law in finding that the Appellants had waived their rights to challenge the retrenchment package when waiver had not been established by Respondent as required by law. In ground number 3 the Appellants seeks to attack the award on the basis of a seemingly conflicting decision by the Arbitrator as to whether there was a lawful termination. Although Appellants did not specifically plead so the Appellants is clearly seeking to impugn the decision on the basis of it being grossly unreasonable. The fourth ground attacks the award on the basis of the Arbitrator misdirection at law in seeking to give effect to an otherwise illegal agreement between the parties. The last ground raises the issue of a misdirection on the facts and law in the Arbitrator’s finding that an acknowledgement of receipt amounted to an acceptance of an offer of the retrenchment package and consequently a lawful termination.

I shall proceed to determine the issues as placed before the court.

WHETHER THE ARBITRATOR MISDIRECTED HIMSELF ON THE FACTS AS TO AMOUNT TO A QUESTION OF LAW IN CONCLUDING THAT APPELLANTS HAD ACCEPTED THE OFFER BY RESPONDENT TO RETRENCH THEM

The Appellant submitted that the learned Arbitrator erred and misdirected himself in failing to find that they never accepted Respondent’s offer of termination by way of retrenchment. The Appellant submitted, they merely acknowledged receipt of the purported offer letter dated 2nd March 2015 This was clear as the Appellant had in fact raised counter-offer. It was also Appellant further submission that their acknowledgement of receipt did not amount to acceptance of offer as found by the Arbitrator.

The Respondent position was that the Arbitrator was correct in his finding that Appellants had accepted the offer of retrenchment. This was clear on the basis of evidence as placed before him of letters given to the Appellants some of which clearly indicated acceptance of the second option of retrenchment. The Respondent further submitted that the Appellants were bound to the terms of the offer by the principle of sanctity of contract; the Appellants having elected the option of retrenchment were bound to their selection. The Respondent referred to authorities including Magodora vs Care International matter SC 24/14.

In the court’s ruling the Arbitrator clearly erred and misdirected himself on the facts as to amount to a misdirection in law when he found that the Appellants had accepted the packaged offered by the Respondent. The evidence as placed before him indicated that the letter dated 2nd May had requested the Appellants to show by way of indication the option one was taken between the two option i.e.

to be placed on short-time and the cutting of allowances; and option,

to be placed on retrenchment with a package which included notice-pay (one and half months) cash in lieu of leave and Old Mutual Pension Redemption (gratuity).

The particular letter through its content requested the employees to acknowledge receipt of the letter it cannot therefore be disputed that some of those who signed most probable signed in acknowledgement of receipt the letter rather than to the offer. The letter also specifically requested an employee to select between option 1 and 2. There were clearly some who raised counter-offers to the Respondent e.g. those who requested for the minimum three months notice pay and some requested for overtime. Against this background it is clear that the parties were clearly not ad idem on the terms of the retrenchment packages payable. A finding of mutual agreement could not be made in such circumstances. On this basis the Arbitrator clearly erred and misdirected himself in finding that the Appellants accepted termination by way of retrenchment.

WHETHER THE APPELLANTS WAIVED THEIR RIGHT TO CHALLENGE THE RETRENCHMENT

The Appellants submitted that the Arbitrator erred and misdirected himself in finding that they had waived their right to challenge the retrenchment package when such waiver had not been proved by Respondent as required under the law. The Appellants relied on authorities in Muzuva vs United Bottlers and Machingauta vs Agribank. The Respondent did not agree contending instead that the issue of waiver is a question of fact. The Respondent referred to authorities in Chidziva & Ors vs Zimbabwe Iron & Steel Co Limited 1997(2) ZLR 368 (S).

The Arbitrator found that the Appellants by accepting the flawed retrenchment process and further accepting the payments made into their banks including the withdrawal of their pension contributions the Appellants waived any rights to challenge the process. The Arbitrator stated as follows;

“They accepted the offer made to them and went on to receive payments in line with the agreement to retrench them. They even accepted the withdrawal of the pension contributions.

In the absence of any evidence being tendered to show that the agreement was foisted on them I find it difficult to follow the claimants’ argument in this matter. I have struggled to follow the allegation of unlawful termination of the contracts of the claimants. I find no unlawfulness in the circumstances where claimants were fully aware of the position in which respondent was, i.e. that respondent had viability problems, which then led to the respondent making an offer to retrench the claimants, and the claimants accepted the offer resulting in an agreement to terminate the contracts being entered into. Once the claimants had accepted the defective termination of their contracts, I do not see how they now wish to condemn the same defects which they earlier on condoned.

I therefore, accordingly, dismiss the claims in toto. All claims must fail.

This will be my award.”

The finding by the Arbitrator was clearly marred. He had already made observations that the retrenchment process itself was marred. He stated as follows “it is also clear to me that the Respondent cut corners in effecting the retrenchment of claimants that too is without argument”.

Having reached the conclusion that there was no compliance with the procedures for retrenchment the issue of waiver clearly did not arise. In order for waiver to exist  there ought to be full knowledge of the legal rights being abandoned in this case the parties had not reached mutual agreement on the terms of retrenchment. There was an offer which was not clearly accepted in some case and in other cases met with a counter-offer. The parties were simply not ad idem. The issue of waiver would not arise in such circumstances. The case of Chidziva & Ors vs Zimbabwe Iron & Steel Co Limited referred to by Respondent was distinguishable.

WHETHER IT WAS PROPER TO GIVE EFFECT TO AN ILLEGAL AGREEMENT

There is also no doubt that the Arbitrator erred and misdirected himself in proceeding to uphold the termination of Appellants employment contracts whilst at the same time accepting that the termination was not strictly in terms of the law. The learned Arbitrator as indicated made a finding that the Respondent had cut corners in effecting the retrenchment of the Appellants. It is common cause the procedure for retrenchment was set out in Section 12 C. Under those provisions once notice of retrenchment is given the parties have to commence negotiations which will result in the agreement of a package which may be above but cannot be below the minimum retrenchment package as set out in Section 12 C (2). In this case the Appellants were offered 1 ½ months in notice pay where the relevant Statutory Instrument      outlined the minimum of 3 months in notice pay. The package offered to Appellants did not meet the minimum retrenchment package. Where an agreement that is tainted with illegality that does not make for a valid retrenchment process. The arbitral award simply has to be vacated on this basis.

In the result the following order is made;

The appeal succeeds with costs.

The arbitral award handed down on 3 December, 2015 be and is hereby set aside and substituted with the following;

The claimant’s contracts were unlawfully terminated.

The Respondent is directed to reinstate unto its employ the claimants. In the event that reinstatement is no longer tenable, the Respondent is to pay damages in lieu of reinstatement.

Messrs J. Mambara & Partners, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners