MTSHIYA
J: This
is an opposed application wherein the applicant prays for the
following relief:
“IT
IS ORDERED THAT:
1.
The purported retirement by the Respondent of its employees as
contained in its letters dated 13th
March 2014 be and is hereby declared unlawful and set aside with the
employees being reinstated to their respective positions without loss
of salary and benefits.
2.
The Respondent pays the costs of this application.”
The
applicant is a trade union duly registered in terms of the Labour Act
[Chapter
28:01].
It, the applicant, represents some employees of the respondent, who,
constitute the majority of its membership.
In
March 2014 the respondent took a decision to retire about 94 of its
employees who are members of the applicant. The employees were being
retired for having reached the normal or official retirement age of
60 years. The respondent could, however, if it so wished, retire the
employees at 65 years (late retirement).
In
the main, letters sent to the affected employees generally read as
follows:
“RE:
YOUR NORMAL RETIREMENT FROM COUNCIL SERVICE
Our
records show that you attained the age of 60
years in 2013
and in terms of HR
and GPC recommendations items 30 and 2 of 28 January and 4 February
2014
respectively
and adopted by Council on the 6th
of March 2014
as read with Clause 7(4)(a) and Clause 10(1)(b) of Statutory
Instrument 135 of 2012 Collective Bargaining Agreement your service
with Council is hereby terminated with immediate effect.
You
will receive your terminal benefits including 3
months
notice period payment from the Remuneration and Welfare Division of
the Human Capital Department, Pay Office at Rowan Martin Building. It
is also important for you to note that Council engaged Local
Authorities Pension Fund (LAPF) and agreed that the processing of
your pension will be expedited. You are required to return any
Council property in your possession to your Head of Section before
you retire.
I
now wish to extend my profound gratitude for the loyal and valuable
service you have rendered to the Department and Council as a whole
for the period of service and wish you a happy time after
retirement.”
Employees
affected by the above communication fall under the Local Authorities
Pension Fund Rules, which rules allow the respondent to fix the
retiring ages of its employees i.e. applicant's members.
That
point is common cause.
Section
11 of the Pension Fund Rules provides as follows:
“Retirement
of contributors
11(1)
Subject to the provisions of subsection (2), for the purposes of this
Scheme a contributor -
(a)
may retire or be retired on attaining or at any time after he has
attained the age fifty-five years;
(b)
shall retire or be retired on attaining -
(i)
such age between the ages of fifty-five and sixty-five years, both
included, as his employer may fix as the retiring age for
contributors.
(ii)
where his employer has not fixed a retiring age for the purposes of
subparagraph (i) applicable to him, the age of sixty years.
(2)
Where an employer considers it desirable to retain a contributor
beyond the retiring age applicable to him in terms of paragraph (b)
of subsection (i), the contributor may, with his consent, be retained
in the service of his employer beyond such retiring age but shall
retire or be retired not later than the last day of the month in
which he attains the age of sixty-five years.”
Furthermore,
s10(1)(b) of the Collective Bargaining Agreement Harare Municipal
Undertaking (General Conditions of Service) S.I.135/12 (the CBA)
provides as follows:
“Subject
to the Local Authority Pension Regulations, the following shall be
considered pensionable ages –
(a)
55 years of age - Early Retirement;
(b)
60 years of age - Normal Retirement;
(c)
65 years of age - Late Retirement;
Provided
such employee shall qualify for a pension upon having served the
employer for a continuous period of ten (10) years on pensionable
conditions upon reaching the aforementioned ages.”
It
is also common cause that when the respondent took the decision being
challenged, some of the employees were already above the age of 60
years and were therefore awaiting late retirement at 65 years.
The
applicant takes no issue with the provisions of the law quoted above
but argues that the respondent cannot proceed to exercise its right
to retire the affected employees at the normal retirement age of 60
years without their consent.
The
applicant also argues that the respondent is aware that the pension
fund has no money and that the respondent has not been paying its
dues. Added to that, the applicant notes that the Medical Aid Scheme
under which its members fall (i.e. the Harare Municipal Medical Aid
Society) is also owed money by the respondent.
The
applicant then contends that the respondent should honour its
obligation under the pension fund and the medical aid scheme before
forcing its members to retire at the age of 60 years.
On
its part the respondent, in the main, opposes the relief sought on
the grounds that:
(a)
this court has no jurisdiction to deal with a labour matter.
(b)
it retired employees who had reached normal retirement age and was
not obliged to seek their consent.
(c)
consultations were made with the employees' Central Works Council.
(d)
its financial problems do not take away its right to retire employees
who have attained the normal retirement age and the financial issue
is before an arbitrator.
(e)
retired employees would be assured of their pensions; and
(f)
retrenchment was not applicable.
For
this matter to proceed, I am obliged to start by addressing the
question of jurisdiction.
My
immediate answer to the question of jurisdiction is that both the
Constitution of Zimbabwe Amendment (No.20) Act 2013, (the
Constitution) now in force, and the High Court Act [Chapter
7:06],
through ss171 and 13, respectively, grant the High Court unfettered
jurisdiction over all civil matters in Zimbabwe.
Section
171(1)(a) of the Constitution provides as follows:
“(1)
The High Court –
(a)
has original jurisdiction over all civil and criminal matters
throughout Zimbabwe.”
Section
13 of the High Court Act provides as follows:
“Subject
to this Act and any other law, the High Court shall have full
original civil jurisdiction over all persons and over all matters
within Zimbabwe.”
I
agree that the relief sought is in the form of a declarator and would
normally not be dealt with by the Labour Court, as per ZIYAMBI JA in
UZ–UCSF
Collaborative Research Programme in Women's Health v Shamuyarira
2010 (1) ZLR 130, where she said:
“there
is no provision in the Act (nor have I been referred to any provision
in any other enactment) authorizing the Labour Court to issue the
declaratory order sought by the respondent. It is therefore my view
that the Labour Court ought to have dismissed the application for
want of jurisdiction.”
However,
the above provisions in our law, give the applicant the right to be
in this forum. We are, in casu,
dealing with a civil matter which is in the form of a labour dispute.
In
view of the above, I believe it would be unconstitutional to deny the
applicant the right to be heard in this court.
I
am therefore, unable to uphold the point in limine.
On
the merits of the matter, I find myself being unable to agree that
the applicant is entitled to the relief it seeks.
It
is clear to me that in terms of s10(1)(b) of the CBD the normal
retirement age was fixed at 60 years. That, in my view, is in line
with s11 of the Pension Fund Rules which grant the respondent the
power to fix the retirement age.
The
respondent fixed the normal retirement age at 60 years and set 65
years as the late retirement age.
The
applicant agrees with that but contends that there was still a need
on the part of the respondent to obtain consent from each of its
members.
I
disagree.
As
indicated in the pension fund rules as read with s10(1)(b) of the
CBA, the employee's concern only becomes an issue if the respondent
desires the services of the employee beyond the normal retirement
age.
There
is no dispute regarding the meaning of normal retirement age. The
normal retirement age was fixed at 60 years. I will therefore not
delve into that.
I
agree that some members of the applicant were allowed to continue
serving beyond the age of 60 years. That would certainly have caused
them to believe they would now fall under the late retirement age of
65 years. (i.e. legitimate expectation)
I,
however, venture to say, upon reaching the normal retirement age,
members of the applicant served at the pleasure of the respondent.
That explains why we are not told about the process of obtaining
their consent to serve beyond the normal retirement age. The members
raised no issue with that, yet the issue of late retirement should
not have been taken for granted.
The
respondent, in deciding to retire the applicants' members before
the age of 65 years was magnanimous enough to give them three months
notice upon having consulted with the Central Works Council. It was
not denied that some members of the applicant, namely Messrs Kisi and
Kuzora attended the consultation meeting(s) with the respondent. I
want to believe that those members of the applicant who attended the
meetings had the requisite mandate.
I
do not believe that once an employee reaches the normal retirement
age, he or she has an obligation to engage the employer unless he or
she wants to apply to be considered for late retirement. The same
applies to the employer in the sense that engagement with the
employee is only necessary if the employer wants to retain the
employee beyond the age of 60 years. That is the interpretation I
give to the relevant provisions of the CBA and the pension fund
rules.
Furthermore
I do not think that where there are clear retirement provisions in a
contract of employment, the law will dictate that the employer
abandons same in favour of retrenchment. The employer can only be
challenged if the retirement rules have been violated.
I
do not find that to be the case in casu.
The applicant's members were lawfully retired and the issue of
retrenchment never arose.
The
above finding means that other financial issues raised by the
applicant do not in any way impact on the legality of the
respondent's decision. The applicant's members are at liberty to
lay their claims before the pension fund. In any case the financial
matters that the applicant raised are the subject of an on-going
arbitration process. That position was not disputed by the applicant.
In
view of the foregoing, the application cannot succeed.
The
application is dismissed with costs.
Messrs
Wintertons,
Applicant's Legal Practitioners
Messrs
Chihambakwe, Mutizwa & Partners,
Respondent's Legal Practitioners
