The Salvation Army Zimbabwe t/a Howard High School v Andrew Tavayena and 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/228/25
HARARE, 29 JANUARY 2025
CASE NO. LC/H/21/25
THE SALVATION ARMY ZIMBABWE
---------


IN THE LABOUR COURT OF ZIMBABWE

HARARE, 29 JANUARY 2025

THE SALVATION ARMY ZIMBABWE T/A HOWARD HIGH SCHOOL

JUDGMENT NO. LC/H/228/25

CASE NO. LC/H/21/25

APPELLANT

And

ANDREW TAVAYENA AND 2 OTHERS	RESPONDENTS

Before the Honourable Kudya J;

For the Appellant

For the Respondents

- R.G. Zhuwarara and T. Kashau (Legal Practitioners)

- W. Kupara, (Unionist)

KUDYA J:

The Salvation Army Zimbabwe trading as Howard High School filed 3 appeals against the decisions handed down in cases concerning their employees, Gatsi, Tavayena and Kaviya. The a3 appeals were consolidated into a single appeal under LCH 21/25. This judgment therefore addresses the 3 appeal as a single appeal as all the 3 appeals raise essentially the same issues.

The background to the matter is that, the appellant retired the employee respondents at age 60 basing the retirement on the ZB Pension Scheme to which it subscribes and which it says bound the employees. The employees were unhappy by being retired at age 60, so they approached the designated agent who ruled that indeed the employer was wrong to retire the employees at age 60. He therefore ordered that they be reinstated so that they continue working beyond 60 or if that was

1

no longer feasible, that they be paid damages for the period they were supposed to continue working beyond age 60.

The employer was unhappy with the reinstatement awards so, it appealed the Labour Court against all the 3 awards which had been made in the employees’ favour. It is that appeal which is the subject of this judgment.

At the commencement of the hearing, the employees took the point that, the appeal grounds were not clear and concise. They however withdrew the point in limine thus leaving for determination only the merits of the appeal. This judgment to that end does not address the point in limine since it was dropped when the hearing commenced.

The appeal is hinged on grounds which can be summarised in the following manner: -

1. Arbitrator failed to consider and deliberate appellant’s defence that NSSA scheme was inapplicable in the employee’s case as they were bound by the ZB Pension Scheme Fund which specified the retirement age as 60 years.

2. Arbitrator grossly erred by not considering and deliberating the membership scheme which set out 60 years as retirement age in accordance with the ZB Pension Scheme and which statement was not challenged by the respondents.

3. The DA erred by not finding that appellant and respondents had implicity or impliedly agreed to import the retirement age of 60 years ascribed by the ZB Pension Scheme which is part of the respondents’ conditions of service.

4. The DA erred at law by failing to interpret the provisions of the respondents’ contracts which affirmed their consent to be retired at age 60.

In the result, appellant prayed that, the appeal succeeds with costs and thatthe DA’sdeterminations be set aside and be substituted with a dismissal of all the respondents’ claims.

In response to the appeal, the respondents maintained in summary that: -

1. The DA’s decisions should not be interfered with lightly as there is no demonstrable gross misdirection or violation of public policy in all the decisions dismissing the employees’ retirements as being out of step with the law.

2

2. There is no evidence that the parties contracted on the 60 year retirement age. The employer is seeking to have the court rewrite the contract in that respect which is legally untenable.

3. The contracts of employees which were attached are silent on the 60-year retirement age.

4. The DA did not decide the case based on the NSSA regulations so the appeal has to be dismissed.

5. Ground 2 to 4 speak to the same issue and appellant failed to adduce evidence to support its claim. The alleged consent agreement is not part of the record so it should not be relied on when the matter is being deposed of.

In the result, the respondent employees prayed that the appeal be dismissed and that the DA’s determinations be made to stand.

It is settled that, appeal courts only interfere with the exercise of discretion by a trier of fact in very limited cases, that is only when it is shown that the discretion was exercised in a grossly unreasonable manner. See Nyahondo v Hokonya and others 1997(2) ZLR457(S) and Hama v NRZ 1996(1) ZLR664(S)

Applying the law set out in the above cited cases, the court observed the following about the case at hand:

Ground 1

The law on pensionable age is settled See Mubvumbi v City of Harare SC64/18. It is clear from that case that, pension regulations only set out a pensionable age if they are incorporated into the parties’ employment contract explicitly or impliedly. It is also clear that, the NSSA regulations which speak to age 65 only refer to the age up to which an employee can continue contributing to NSSA. It does not at all say that employees should be retired at 65 years.

The employees in their oral submissions maintained that the DA was correct to rule that they should have been retired beyond age 60 since in their view their contracts did not import the age 60 set out by the ZB Scheme terms.

3

It is pertinent to observe that, both parties were correct in their interpretation of the law in so far as it clearly sets out that a pension scheme does not set out the retirement age unless incorporated into an employment contract. See Mubvumbi (supra). In the same spirit, the court cannot contract for the parties See Magodora v Care International SC24/14. It need be observed that, any reference or deliberation of the age stated in NSSA could not legally settle the issuewhich dogged the parties. As stated earlier NSSA does not set any retirement age so the employees could not rely on it. The ground being merited should succeed.

Ground 2

The court observed that, when the hearing commenced indeed the membership scheme loan was not yet on file but the employer undertook to file same post hearing which it did. A reading of the membership scheme states clearly that the pensionable age should be 60. It was also apparent from the contracts which were signed by the employees that explicit adoption of the scheme conditions was made to the extent that it was wrong for the DA not to seriously consider the import of that scheme. See 6.1 of Tavayena’s employment contract which states clearly that ‘You will contribute to NSSA and you will also be expected to join employer pension scheme as guided by the employer pension policy” The employer’s pension policy of choice was ZB Life Assurance Limited so the employee was bound by such. The ground being merited should succeed.

Ground 3

As stated in 2 above, it was clear from the employees’ contracts and the membership scheme terms that the employees were bound by the scheme whose conditions were as set out in the ZB Scheme. It was therefore wrong for DA to conclude that the employees could not be retired at 60 years yet, during their employment they continued to sign the document which showed that the ZB pension scheme applied to them. The appellant is therefore ,correct to say that, if the employees had any issues with that, they they were duty bound to query that whenever they signed the membership scheme . The DA was therefore wrong to conclude that the employees were not bound by the ZB pension scheme.The ground being merited should also succeed.

Ground 4

4

Sentiments in ground 2 and 3 applying to this ground with equal force. It was indeed wrong for the DA to say that the employer could not retire the employees at age 60 because the ZB Pension Scheme was not part of the employees’ contracts. In fact, it clear as borne out by the membership documents which the employees used to sign time and again. The DA therefore clearly misdirected himself and set aside retirements which had been legally effected by the employer. His decision should therefore be vacated. In the ultimate, it is clear that, the appeal in its entirety is merited. It should succeed.

IT IS ORDERED THAT:

1. Appeal being merited it be and hereby succeeds.

2. All the determinations setting aside the retirement of the employees be and hereby set aside. 3. In their place the employees claims to work beyond age 60 be and are hereby dismissed. 4. Each party bears own costs.

Coghlan, Welsh and Guest- Appellant’s Legal Practitioners

5