Sekai Chireka & 188 Others v Fidelity Printers & Refineries (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/579/16
HELD AT HARARE 6 JULY 2016
CASE NO
JUDGMENT NO LC/H/579/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/579/16

HELD AT HARARE 6 JULY 2016				CASE NO LC/H/APP/412/16

& 23 SEPTEMBER 2016

In the matter between:

SEKAI CHIREKA & 188 OTHERS				Applicants

And

FIDELITY PRINTERS & REFINERIES (PVT) LTD			Respondent

Before The Honourable Muchawa, J

For Applicants			Advocate T  Zhuwarara

For Respondent		W Magaya (Legal Practitioner)

MUCHAWA J:

This is an application for leave to appeal to the Supreme Court against my judgment of 18 March 2016 in which I dismissed an application for condonation of late filing of an appeal.

The 189 applicants are former employees of the respondent who were each employed at different times in various capacities.  They were retrenched on 30 June 2010 following each applicant signing a retrenchment agreement.  Such agreements were duly approved by the Retrenchment Board on 12 July 2010 and each applicant was paid their dues.

Some two years later, in September 2012, the applicants lodged a complaint with the labour officer calling upon the labour officer to review the decision of the Minister to approve the retrenchment in terms of section 12 C (9) of the labour Act [Chapter 28:01].  When no settlement was reached, the matter was referred to arbitration.  Honourable arbitrator Professor Madhuku found in favour of the applicants but the award was overturned on appeal as the applicants had been improperly cited.  The matter was referred back to the labour officer, then to arbitration in February and March 2014 respectively.

The terms of reference before the arbitrator were to determine;

Whether or not the matter had prescribed

Whether or not the labour officer had jurisdiction to hear the matter

Whether or not the retrenchment process was fairly and lawfully carried out

Whether or not the basis for calculation was fair and proper at law

Whether or not the claimants were immediately replaced after the retrenchment

Whether or not the immediate replacement of claimants after retrenchment was fair

Appropriate remedy.

Honourable arbitrator Masinire disposed of the matter in respect to the question of

jurisdiction.  He found that he had no jurisdiction, like the labour officer to hear a dispute regarding retrenchment after the approval of the Minister.

Though I found that the applicants’ delay in noting the appeal was not inordinate and the explanation for the delay was reasonable, I dismissed the application as I found there were no prospects of success in the appeal.

The parties abandoned the preliminary points they had raised in this application, preferring to have the matter determined on the merits.

The case of Pichanick N O v Paterson 1993 (2) ZLR 163 (H) has settled what ought to be considered in an application for leave to appeal.  For leave to appeal to be granted there should be reasonable prospects of success on appeal and the amount in dispute should not be trifling.  Further the matter should be of substantial importance to one or both of the parties.  The court also has to consider the balance of convenience.

The contestation is really on whether applicants have prospects of success on appeal.

The proposed grounds of appeal before The Supreme Court are stated thus;

The court a quo erred at law in holding that the learned arbitrator had no jurisdiction at law to preside over the appellants’ matter which is clearly within the jurisdiction of the arbitrator.

The court a quo  erred at law in not making a finding that the dispute on quantification of the retrenchment package in this case falls within disputes that can be determined by labour officers, and by extension arbitrators.

At the hearing of this application the applicants were represented by Advocate T

Zhuwarara.  He made the concession that the court correctly found that the arbitrator had no jurisdiction to consider whether or not the retrenchment process was fairly and lawfully carried out.  He however insisted that the arbitrator had jurisdiction to consider whether or not the basis for calculation of the retrenchment package was fair and proper at law.  It was also argued that the arbitrator had jurisdiction to inquire into whether the claimants were immediately replaced after retrenchment and if so, whether that was fair.

The issue relating to the calculation of the retrenchment package is alleged to go beyond the mere approval of the retrenchment and is said to have fallen squarely within the arbitrator’s purview.  Reference was made to section 12 (1a) of the Labour Act.  This section provides;

“Wages and benefits payable to any person or to his or her estate in form of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of section 12 C.”

The issues relating to the post retrenchment period of the alleged replacement are argued to constitute an unfair labour practice worthy of the court’s consideration.

On the contrary, the respondent argues that the issue argued before the court and to be brought on appeal relates to the jurisdiction of the arbitrator to review the Minister’s decision.  That issue has been conceded to and there are therefore no prospects of success.

The respondent objects to the raising of new issues relating to section 13 (1a) of the Labour Act and the alleged unfair labour practice post retrenchment.  It is argued that once the applicants concede that the arbitrator had not jurisdiction to consider whether the retrenchment process was fair or not, then he cannot argue for jurisdiction on the remaining issues.

I agree as finally conceded by the applicants’ counsel that the Minister’s approval covers both the process of retrenchment and the package propose.  Section 12 C (9) states;

“The Minister shall consider without delay any recommendation submitted to him by the Retrenchment Board and, having regard to the factors referred to in subsection (II), shall-

approve the proposed retrenchment, subject to such terms and conditions as he may consider necessary or desirable to impose,

or ---

This means that the lack of jurisdiction of the arbitrator extended even to the question of the retrenchment package as those were the agreed terms and conditions of the retrenchment approved by the Minister.

The principle of sanctity of contract also bars the applicants from complaining now against the express terms of the contracts they signed on 30 June 2010.  Each contract had the following clause;

“3. Having considered the proposed package, I am agreeable to entering into an agreement with the employer to be retrenched on the terms and conditions proposed therein.”

This position finds support in Magodora & Ors v Care International Zimbabwe SC 24/14.

Mr Zhuwarara pleaded with the court to allow the introduction of the new points outlined above, even at the appeal stage.

The rationale for allowing issues of law to be raised at any at any time is to enable a court to have all the information, even at a very late stage so that it is enable to make a proper decision.  Zimasco (Pvt) Ltd v Marikano SC 6/14.

My considered opinion is that the Supreme Court will be disinclined to allow these points to be raised because they are not covered by the pleadings and this will be unfair to the respondent.  There will also be need for further evidence to be called to prove the events alleged to have happened post the retrenchment.  It is also not common cause and is denied by the respondent that new employees were hired immediately to replace the applicants.  See Austerland (Pvt) Ltd v Trade & Investment Bank & Ors SC 92-05.

In any event the issue of prescription raised by respondent is a very serious one.  It is common cause that at the time of lodging the initial complaint in September 2012, two years had lapsed from the date of the approval of the retrenchment on 12 July 2012.

The proposed appeal does not have any prospects of success and the balance of convenience favours the dismissal of the application.

Accordingly the application for leave to appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche, applicants’ legal practitioners

Coglan, Welsh & Guest, respondent’s legal practitioners