Simbarashe Chikuni and 19 Others v The Salvation Army

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/399/2025
HARARE, 02 OCTOBER, 2025
CASE NO. LC/H/643/25
And 21 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/399/2025

HARARE, 02 OCTOBER, 2025

And 21 OCTOBER 2025

CASE NO.	LC/H/643/25

SIMBARASHE CHIKUNI	APPLICANTS

AND 19 OTHERS

THE SALVATION ARMY	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants	- W. Kupara, Unionist

For Respondent	- R. G. Zhuwarara, Advocate

MUSARIRI, J:

Applicants applied to this Court for review of the ruling on short-time work issued by the NEC Welfare and Educational Institutions. The application is provided for by section 89 of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the application.

The applicants’ grounds for review were duet thus,

“1.  The National Employment Council Retrenchment Committee grossly erred and misdirected itself in failing to consider that the Applicants (sic) did not comply with its preliminary ruling requiring full financial disclosure and it went ahead in granting the application with full knowledge that the requirement had not been complied with and as such its discretion to allow six month short time is procedural wrong and irrational.

2.  The author of the determination is different from the one who presided over the proceedings, his involvement constitutes an error of law and he did not act fairly, transparently and there is clear bias.”

Applicants then prayed that their original working hours be restored. The material part of respondent’s opposing affidavit countered that,

“5.   This is denied. Please note that some documents were provided and are attached hereto, as Annexures B to F, being documents such as bank statements and invoices, which detail the funds available to the Respondent at the start of the year and how those funds were allocated. This was enough to have the tribunal make a sound determination, which was fair in the circumstances.

8.   This is denied. A party that alleges the existence of bias must clearly prove it, in this matter the alleged failure to produce verified financial records or the passing of the decision by the presiding officer does not depict bias in any manner. Bias speaks to personal interest; the Tribunal had no personal interests in the matter. The Tribunal will not stand to gain anything from the outcome. The assertion that there was bias is therefore unfounded. The Applicant is put to the strictest proof thereof.’

Respondent prayed that the application be dismissed.

Background

On 18 March 2025 respondent applied to the NEC for approval of measures to avoid retrenchment in terms of section 12D of the Act. A hearing was held. Then on 20 May 2025 the NEC issued a preliminary decision which ruled,

“	-That the parties go back to the workplace and engage each other further more on the alleged financial incapacity.

-That the meeting should be held in the presence of the NEC Designated Agent and the Respondents representatives.

-That the outcome should be communicated to the NEC Retrenchment Committee by Applicant on or before 31st May 2025.”

The parties met on 28 May 2025 but failed to reach an agreement.

The parties returned to the NEC for the final hearing.	On 17 June 2025 the NEC issued a determination which ruled thus,

“a.   That short time work be and is hereby granted for a 6 months period effective from the date of agreement of implementation.

b.	That the Respondents retain access to core benefits (e.g. medical aid, NSSA, etc).”

Analysis

The grounds for review and the response thereto raise 2 (two) issues which will be addressed ad seriatim.

A Whether the NEC grossly erred in failing to consider that respondent did not comply with the preliminary ruling:

Applicants alleged that the preliminary ruling required respondent to make full financial disclosure. Yet the ruling quoted above only required the parties to ‘engage each other further more on the alleged financial incapacity.’ The NEC noted that respondent ‘offered cash budgets and bank statements.’ A copy of respondent’s bank statement filed of record covers the period January 2025 to mid-May 2025. It is accompanied by monthly cash report and budget for up to March 2025.

The upshot of these observations is that the NEC did not order ‘full financial disclosure’ as alleged by applicant. That notwithstanding respondent disclosed relevant bank statements and budgets. The applicants’ call for audited statements was misplaced. Accordingly this ground for review stands to be dismissed.

B. Whether the involvement of the author of the determination constitutes an error of law or shows bias:

The author of the determination is one S. Nyereyemhuka. The determination refers to the ‘retrenchment committee’ but did not spell out the members thereof. Applicants’ founding affidavit does not mention Nyereyemhuka. All it stated was

“12. The one who issued the determination is different from the one who chaired the proceedings this clear bias. The applicant’s legal representative raised a preliminary objection that the chairperson had an interest and another person took up the role. The determination which granted the short time work was issued by a person who did not assume the chairperson’s role. This is dangerous as it creates bad precedence and his involvement constitutes an error of law.”

The nature of the bias or interest was not disclosed. In any event the ‘biased’ chairperson was replaced. The ‘error of law’ was motivated in applicants’ heads of argument as follows,

“13.  The author of the determination is different from the one who chaired the proceedings and his involvement constitutes an error of law and there is clear bias. Bias (Nemo Judex in Causa Sua) has no room in our legal systems.

14.  It is humbly submitted that there is a real likelihood that the author was biased simply because he recused himself on two occasions but surprisingly went on issuing the determination. Bias is a recipe for disaster in the justice delivery system, this is so because the outcome would always favour the other party which does not deserve.”

Again the nature of the bias or interest is not disclosed. The author of the determination signed ‘for and on behalf of the NEC Retrenchment Committee.’ This appears to align with applicants’ own version that he recused himself during the hearing. It implies that author was notifying the committee’s decision and not his own. In the circumstances the alleged bias or error was not proved. The Court is fortified in its view by the dicta in the case of,

Leopard Rock v Walenn 1994 (1) ZLR 255(s)

Per Korsah JA at 275

“A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one. One does not inquire into the mind of the person challenged to determine whether or not he was or would be actually biased. Thus the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration. Again, the authorities are agreed that a mere suspicion of bias is not enough.”

Conclusion

The foregoing analyses of the both issues resolve against applicants. Perforce their application ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The application for review be and is hereby dismissed; and

Each party shall bear is own costs.

G. MUSARIRI J-U-D-G-E