Zimasco (Pvt) V Justin Phiri AND 139 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 12 March, 2025 & 18 MARCH
JUDGMENT NO LC/H/118/25
CASE NO LC/H/1/25
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 12 March, 2025 & 18 MARCH

2025

In the matter between:-

ZIMASCO (PVT)

JUSTIN PHIRI AND 139 OTHERS

JUDGMENT NO LC/H/118/25 CASE NO LC/H/1/25

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant	N. Katsande (Legal Practitioner)

For the Respondents	M. Gwisai (Legal Practitioner)

KUDYA, J:

The employer and the employees in this case approached the Labour Court on appeal and on cross appeal in respect of an arbitral decision which had ruled that they appear before the retrenchment board so that the board could assist them to arrive at a mutually agreeable and mutually beneficial package.

The background to the matter is that the employees went to arbitration following a retrenchment process which had been conducted by the employer in their respect. The arbitrator ruled that notwithstanding the flaw that notice was not properly given as required by law and that there was no minimum retrenchment figure, the parties had to go to the retrenchment board for an assessment of the package.

The employer was not happy with the decision so it appealed to the Labour Court. The appellate relief which it was seeking was that the arbitral decision be set aside and that the arbitrator be ordered by the court to assist the parties to arrive at a mutually beneficial package.

On the other hand, the employees challenged the employer’s appeal and cross appealed that the arbitrator should have ruled that a flawed retrenchment process amounted to unlawful dismissal in which case they prayed that they be reinstated to their original jobs without loss of salary and benefits.

On the hearing date the lawyers for both parties caucased on the issue and resultantly agreed that only a single issue stood for determination. The matter was therefore postponed to another date by when parties would have filed with the court supplementary heads of argument on the singular issue to be determined. It was clear from the appeal and cross appeal that both parties were unhappy with the award and that it should be vacated. The divergent positions only related to the singular issue which mainly related to what should take place once the arbitral award had been vacated.

Given the above background it is therefore unnecessary to re hash the appeal and cross appeal grounds as parties agreed that only a single issue should be determined. This judgment therefore only addresses the singular issue for determination which was couched in the employees’ cross appeal ground 2 as such: -

“The arbitrator erred in holding that the identified irregularities were not fatal, whereas same contravened fundamental requirements under section 12 C of the Labour Act, thereby rendering the retrenchment a nullity in particular that

The date of retrenchment was prior to the notice of the intention to retrench to the Retrenchment board.

There was no prescribed minimum retrenchment package and the arbitrator incorrectly applied the provisions of SI 191/24, which statute did not have retrospective effect”

For completeness of record it need be noted that both parties filed supplementary heads of argument to deal in detail with this singular issues. The employees filed their heads on 7/3/25 whilst the employer filed its heads on 12/3/25. Both documents bear the title “Respondent heads of argument “That scenario was caused by the fact that parties are appellant

and respondent in main appeal and cross appellant and respondent respectively in the cross appeal.

To avoid confused referencing parties shall be addressed in this whole judgment as employer and employees. Their supplementary heads of argument shall be referred to as the employees’ heads of 7/3/25 and the employer’s heads of 12/3/25.

A reading of the employer’s heads of argument shows that it abandoned its argument vis the retrospective application of SI 191/24. This put to paid the employees’ argument that the arbitrator wrongly used SI 191/24 to order the parties to approach the retrenchment board. The conclusion on this aspect is therefore that the employees’ cross appeal is correct and succeeds on the argument that the arbitrator wrongly applied SI 191/24. Having concluded the SI 191/24 issue only 2 issues remain to be determined. Their determination is below:

Delayed notice to the retrenchment board

The factual conspectus of this issue is that it is a fact that the employer only notified the board of its intention to retrench on 13/6/24 yet it had commenced the process and also indicated that the effective retrenchment date was 31/5/24. It is also not doubted that the arbitrator observed that anomaly but he however concluded that such an infraction was not fatal to the process.

Both parties cited extensive authorities on the import of an obligatory provision “SHALL”. In the court’s view there is no doubt that the authorities cited by the parties are all correct. The only point of departure between them is the net effect of the noncompliance.

The employees argue that such non compliance renders the whole retrenchment process void thus nullifying it and entitling them to reinstatement See Mcfoy vs United Africa Company Ltd (1961) All ER1169 on nullity.

On the other hand, the employer concedes the non compliance with the time limes but argues that such only renders the process voidable at the altar of non compliance. It argues that parties had engaged almost full throttle on the process but only hit a snag when it came to the figures. It reasons that it is only the figures which prompted the parties to approach the arbitrator. In its view the process cannot be deemed a nullity for the simple reason that the notice was irregular.

The employer seems to suggest that since the employees participated in the ill timed proceedings, they should be estopped from relying on the time line breach to cause vacation of the process. In fact, they raise a subtle waiver argument See Chidziva and Others vs Zisco Steel 1997 (2) ZLR368(S) on waiver.

A reading of the employer’s heads also speaks to the fact that nothing meaningful can be achieved by nullifying the process on account of the time line breach as the retrenchment was nearing conclusion. In its view all that can be achieved is a technical reinstatement order, technical because the employer is struggling and on the verge of collapse so there is no meaningful reinstatement that the employees can claim for.

It hastened to mention that the time line breach argument is being used by the employees to syphon more from it by way of back pay as they would be deemed to be still in employment whilst an almost concluded process has to be started all over again.

It is settled that a point of law can be raised at any stage of the proceedings unless it is demonstrated that it causes prejudice to the other party. See Muchakata v Nether burn Mine 1996(2) ZLR153(S).

In the case at hand, it is clear that the employees’ acquiescence and participation in a patently ill-timed process does not make the process right. In as much as they did not vigorously raise it at arbitration and during the retrenchment process no cogent explanation has been made as to why the mandatory clause was not complied with.

It is granted that prior to SI 191/24 the process was primarily employer employee driven but it need be noted that the notice clause was not put in the Act just for window dressing. In fact, it would be a mockery of justice to accept the argument that parties could willy nilly breach it on the basis that it was a “mere” notice hence it could be given anyhow. It is the court’s view that, in the absence of a good explanation for non compliance the employer should be held to its breach.

The notice argument can be viewed in the context of the case of CT Bolts (Pvt) Ltd v Workers Committee SC 91/11 where despite all the tiers of adjudication not noticing or dealing with the issue of locus standi it took the apex court, Supreme Court to conclude that all that had been done with the wrong citation was a nullity. The same fate therefore befalls this matter. The employees’participation in an irregular process does not regularise it. The notice argument being well founded should succeed.

Minimum Package

It is granted and accepted by both parties that at the time of the retrenchment process complained about there was no minimum package provision. In fact, it is clear that there was a gap in the law in that regard. The gap in the law can therefore not be blamed on either party and cannot grant either party relief. It is not fault of the employer that such a gap existed neither is it the employees’ too. It is the realisation that such a lacuna existed that the arbitrator then erroneously sought to invoke SI 191/24 which as concluded above he could not. Given the no fault set up it is clear that the fault lies where it fall. Res Ipsa loquitur See Kabasa v Gwanda SC86-04, The argument about the minimum package thus falls away.

Costs

It is clear from the engagement of the parties from the onset that this is a matter which

need not have dragged the parties to the Labour Court if regard is had to the fact that it was nearing completion. The trade-offs in the argument of the matters says to the court this is a simple matter when parties should have simply requested expert help from the retrenchment board and agree on the final payment figure. Parties chose to be unnecessarily litigious and both ended up incurring unnecessary costs. It is therefore just and equitable that each party be made to bear their own costs.

In the result the single issue that was to be determined partially succeeds with the result that the retrenchment process has to be vacated and started afresh. See Dalny Mine vs Banda 1999

(1) ZLR 220.

Zupco vs Mashinge SC 21/21

IT IS ORDERED THAT;

The singular issue which the parties agreed that it should be determined that is cross appeal ground 2 of the matter be and hereby partially succeeds as follows: -

Argument about improper application of SI 9/24 be and hereby succeeds

Argument about belated notice be and hereby succeeds.

Argument about minimum package be and is hereby dismissed

Arbitral award be and is hereby set aside.

In its place the retrenchment process is adjudged to have been irregular for want of compliance with the notice provision timelines.

The employees be accordingly reinstated to their original positions without loss of salary and benefits.

The employer reserves the right to reinstitute fresh retrenchment processes in a proper manner with the assistance from the retrenchment board.

Each party bears own costs.

Maguchu and Muchada Business Attorneys		Appellant’s Legal Practitioners Matika Gwisai and Partners	Respondents’ Legal Practitioners