CHATUKUTA
JA:
This is an appeal, coupled with a cross appeal, against the whole
judgment of the Labour Court of Zimbabwe (the court a
quo)
in which the it granted an application for review of the
determination by the Retrenchment Board (the second respondent) dated
13 October 2015. After hearing submissions from the appellant and the
first respondent, the court issued the following order:
“1.
The appeal be and is hereby allowed.
2.
The judgment of the court a
quo
be and is hereby set aside and substituted with:
'The
application for review is dismissed with costs.'
3.
The first respondent's cross appeal be and is hereby struck off the
roll.”
The
court indicated that reasons for the order would follow. The reasons
now appear hereunder.
FACTUAL
BACKGROUND
The
appellant initiated a retrenchment process against the first
respondent before the second respondent. The second respondent made
recommendations to the Minister of Labour and Social Services (the
Minister) in terms of the Labour Relations Retrenchment Regulations,
2003 (SI 186/2003) (the Regulations).
By
notice dated 2 March 2015, the Minister approved the retrenchment of
the first respondent with effect from 23 February 2015. The approval
included the terms for the retrenchment and more particularly that
the first respondent was entitled to payment of a gratuity equivalent
to one month's salary for every year worked, a stabilisation
allowance equivalent to two months salary and a severance payment
equivalent to 13.5 months salary.
The
first respondent was to be paid all statutory benefits and any other
agreed items.
The
appellant thereafter paid the first respondent the amount of
US$171,397.51. The amount was computed using the first respondent's
pensionable salary.
The
first respondent was however of the view that he was entitled to an
amount of US$258,522.22 computed using what he described as the
“total guaranteed remuneration package”.
The
total guaranteed remuneration package was alleged to include the
“basic pensionable pay, allowances (non-pensionable), cafeteria
benefits and annual travel allowance (non-pensionable)”.
He
engaged the appellant for a recalculation of the package. The parties
failed to agree.
The
first respondent approached the second respondent seeking
re-quantification of the retrenchment package and that the appellant
be compelled to pay the revalued retrenchment package.
The
issue placed before the second respondent was whether, in computing
the retrenchment package due to the first respondent, the second
respondent was required to use the pensionable salary or the total
guaranteed remuneration package.
The
request for re-quantification of the retrenchment package was
resisted by the appellant arguing that the second respondent was now
functus
officio
and did not have jurisdiction to rehear and redetermine the matter.
In
a decision dated 12 October 2015, the second respondent declined
jurisdiction over disputes arising from terms and conditions of
employment. It instead referred the parties to a Labour Officer in
terms of section 93 of the Labour Act [Chapter
28:01]
(the Act).
Aggrieved,
the first respondent filed an application in the court a
quo
for
the review of the determination of the second respondent.
SUBMISSIONS
IN THE COURT A
QUO
The
first respondent argued as follows:
The
second respondent acted irregularly by declining jurisdiction. It
effectively abdicated its statutory duty to determine and finalise a
retrenchment process. It further acted irregularly by directing that
the matter be referred to a Labour Officer when a Labour Officer has
no statutory powers to quantify a retrenchment package. The referral
was ultra
vires
the provisions of the Act and as such unlawful.
In
response, the appellant argued as follows:
The
second respondent did not abdicate its statutory duties. The
statutory duties were exercised and exhausted when the second
respondent made recommendations to the Minister, which
recommendations were accepted by the Minister. Further, the Act did
not empower the second respondent to deal with a matter that had
already been determined by the Minister. The second respondent lacked
the power to make determinations on the quantum
of
the retrenchment packages awarded by the Minister. The first
respondent ought to have appealed against the decision of the
Minister or subjected the same for review. The appellant averred that
the payment of the package was done with the agreement of the first
respondent.
DETERMINATION
BY THE COURT A
QUO
The
court a
quo
found
that section 12C(2) and (3) of the Act gives the retrenchment board
the power to regulate the retrenchment package. It found that,
contrary to what the second respondent stated in its letter dated 12
October 2015, the dispute in question was about the quantification of
the retrenchment package and not about the conditions of employment.
The court a
quo
also
found that Labour Officers have no jurisdiction over retrenchment
issues and the second respondent erred in referring the matter to the
Labour Officer.
It
granted the application.
Aggrieved,
the appellant filed the present appeal on the following grounds:
GROUNDS
OF APPEAL
“1.
The court a
quo
erred
at law in relying on section 12(2) of the Labour Act [Chapter
28:01]
as currently worded notwithstanding that this was not the law at the
time the retrenchment process between the parties was carried out.
2.
The court a
quo
erred
in holding that section 12C of the Labour Act as currently worded
gave the second respondent jurisdiction to deal with the issues
referred to it by the first respondent.
3.
The court a
quo
grossly
erred in failing to determine issues that were placed before it, viz:
(i)
Whether the process that culminated in the payment of the disputed
retrenchment package could bar the first respondent from challenging
the retrenchment exercise.
(ii)
Whether the Retrenchment Board had exhausted its powers after making
recommendations during the initial proceedings.
4.
The court a
quo
erred
at law in finding as it did that the powers of a Labour Officer under
section 93(1) of the Labour Act [Chapter
28:01]
excluded the power to preside over matters which have a retrenchment
background.
5.
The court a
quo
erred
at law in holding as it did that the Retrenchment Board was empowered
to determine the issue referred to it by the First Respondent after
the Minister had exercised his powers in terms of the then section
12C(9) of the Labour Act [Chapter
28:01]
to make a determination of the matter and set the terms of the
retrenchment.
6.
The court a
quo
erred
at law in failing to hold that after the Minister had exercised his
powers in terms of the then section 12C(9) of the Labour Act [Chapter
28:01],
the Retrenchment Board could no longer exercise any jurisdiction on a
retrenchment matter and more specifically, quantify the retrenchment
package as was requested of it by the First Respondent.
7.
The court a
quo
erred
and misdirected itself at law in failing to hold that the
determination by the Minister had resolved the issue that the first
respondent requested the second respondent to deal with having
determined that the retrenchment package was to be paid on the basis
of the first respondent's salary.”
SUBMISSIONS
MADE BEFORE THIS COURT
The
first respondent, appearing in person, raised a number of preliminary
objections.
(i)
The first objection was that the notice of appeal was fatally
defective for want of compliance with Rule 11(a)(iv) of the Supreme
Court Rules, 2018 as it did not state the appellant's electronic
address and telephone numbers at the time it was filed.
(ii)
Secondly, it was argued that Rule 59(3)(e) of the Supreme Court
Rules, 2018 was not complied with as the notice of appeal did not
state the appellant's address for service.
(iii)
Lastly, it was submitted that the relief sought by the appellant was
incompetent because it was allegedly intended to uphold an unlawful
decision made by the second respondent.
After
an engagement with the court, the first respondent abandoned all
preliminary objections.
For
the sake of completeness, the first respondent conceded that no
prejudice had been occasioned by the failure to provide an electronic
email address as he had been made aware of the appeal. He
acknowledged that he was served with the notice of hearing and had
appeared for the hearing.
With
regards to the absence of the appellant's address in the notice of
appeal, he conceded that the address of the appellant's legal
practitioners appeared in the notice of appeal. The appellant being
represented by legal practitioners, it was not necessary to provide
the appellant's own address.
Lastly,
the first respondent conceded that the question of the competency of
the relief sought was a substantive issue to be determined by the
court after argument on the merits.
Mr
Mpofu,
for the appellant, addressed the Court on the merits.
He
argued that the first respondent erred in citing the second
respondent as the substantive respondent a
quo
when
the second respondent is not a legal persona.
The application was therefore void. He ought to have cited the
chairperson of the Board.
This
point was being raised for the first time without notice, it not
having been raised in the court a
quo.
Counsel
conceded that he was aware of this Court's judgment in Mapondera
and 55 Ors v Freda Rebecca Gold Mine Holdings Limited
SC81/22
to the effect that the question of the proper citation of the name of
a party is a technical issue which does not vitiate proceedings.
Secondly,
he argued that the court a
quo
did
not determine issues that were placed before it and these issues
were:
(i)
that the first respondent waived its right to challenge the
quantification of the retrenchment package after having accepted and
received the package which included a vehicle issued to him by the
appellant during the subsistence of the contract of employment;
(ii)
there was a fatal non-joinder of the Minister who had approved the
recommendations of the second respondent and stipulated the
retrenchment package; and
(iii)
the fact that the second respondent was functus
officio
after
it had made its recommendations to the Minister.
Thirdly,
it was argued that the court
a
quo,
in
remitting the matter to the second respondent for quantification of
the retrenchment package misdirected itself in relying on section
12C(2) of the Act as presently worded.
It
was submitted that the section was promulgated on 26 August 2015
after the cause of action had arisen in September 2014 and after the
Minister had, on 2 March 2015, already approved the recommendations
of the second respondent and communicated the approval to the
parties.
The
section does not have retrospective effect.
It
was argued that the old section 12C which was applicable when the
Minister made his decision did not give the second respondent
jurisdiction to quantify retrenchment packages. It was contended that
the court a
quo
grossly misdirected itself in relying on the wrong law.
It
was submitted that the court a
quo
ought
to have dismissed the application with costs.
Regarding
the cross appeal, counsel submitted that there was no proper appeal
before the Court because the first respondent had not obtained leave
to appeal from the court a
quo
as
required by the Act. As such he prayed for the cross appeal to be
struck off the roll.
In
response, the first respondent argued that the second respondent was
a statutory body and as such had the capacity to sue and be sued in
its own right. It was therefore properly cited as a party in the
court a
quo.
He
submitted that his retrenchment was a nullity on the basis that the
appellant did not give notice to retrench him as is required in terms
of section 6 of the Regulations. He contended that the notice by the
Minister retrenching him was addressed to Old Mutual Limited. It did
not relate to him because his employer was the appellant, Old Mutual
Shared Services (Private) Limited and not Old Mutual Limited.
He
further argued that there was no evidence on record to show that the
second respondent made any recommendation on his retrenchment to the
Minister. In the absence of such proof, the decision by the Minister
was a nullity.
The
first respondent submitted that the court a
quo
correctly held that Labour Officers do not have jurisdiction over
retrenchment disputes.
He
further submitted that the process leading to the retrenchment was
irregular for failure to comply with the peremptory provisions of
section 12C of the Act which require the second respondent to appoint
an authority to superintend over the dispute between the parties. He
argued that section 12C as promulgated on 26 August 2015 has
retrospective effect to 15 July 2015 and was applicable to the
dispute between the parties. The second respondent made its decision
on 6 August 2015. The decision therefore properly fell within the
period after 15 July 2015.
The
first respondent disputed waiving his rights to challenge his
retrenchment.
He
submitted that he has consistently argued that his contract of
employment was unlawfully terminated without notice.
He
conceded that he received the retrenchment package and vehicle. He
however argued that he did so on a without prejudice basis as he was
entitled to his contractual rights until lawful termination of his
contract of employment.
He
further argued that he was still an employee of the appellant, that
his contract of employment had not been terminated and further that
he had not agreed to any terms of retrenchment.
Regarding
the validity of the cross appeal, the first respondent submitted that
he was entitled to file a cross appeal in terms of Rule 45 of the
Supreme Court Rules, 2018 once the appellant noted its appeal. He
submitted that the Supreme Court Rules are derived from section 34 of
the Supreme Court Act and are therefore on the same footing as an Act
of Parliament. He argued that section 92F(2) of the Act does not
therefore apply to a cross appeal.
ISSUES
FOR DETERMINATION
The
following issues fall for determination:
1.
Whether or not there was a cross appeal before the court.
2.
Whether or not the second respondent was properly cited and if not
whether there was a valid application before the court a
quo.
3.
Whether or not the second respondent erred in declining jurisdiction.
4.
Whether or not the court a
quo
erred
in relying on section 12C(2) of the Labour Act [Chapter
28:01].
5.
Whether or not the first respondent waived his right to challenge his
retrenchment.
6.
Whether or not the court a
quo
erred
by failing to determine issues placed before it.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not there was a valid cross appeal before the court
The
first respondent sought to cross appeal against the decision of the
court a
quo.
It is trite that before a litigant appeals the findings of the Labour
Court, there is need, in terms of section 92F of the Act to obtain
leave to appeal to the Supreme Court from the Labour Court or this
Court.
Section
92F(2) and (3) of the Labour Act reads:
“(2)
Any party wishing to appeal from any decision of the Labour Court on
a question of law in terms of subsection (1) shall seek from the
President who made the decision or, in his or her absence, from any
other President leave to appeal that decision.
(3)
If the President refuses leave to appeal in terms of subsection (2),
the party may seek leave from the judge of the Supreme Court to
appeal.”
The
above provision is couched in peremptory terms admitting
no exception.
The
basis upon which each party would seek to appeal is different. Each
party seeking to appeal must meet certain requirements before leave
to appeal is granted.
The
requirements for the leave to appeal and rationale thereof were set
out in Ngazimbi
v Murowa Diamonds (Pvt) Ltd
2013
(1) ZLR 569 where this Court held at 572B-G that:
“The
purpose of requiring leave before noting an appeal to be given by the
President of the Labour Court or upon refusal, by the judge of the
Supreme Court in terms of section 92F(2) of the Act is to prevent
appeals not based on questions of law getting to the Supreme Court.
The right to appeal given by section 92F(1) is a limited right. The
exercise of it is made conditional upon leave being granted.
………………………………………
According
to our law, authority must be sought from the President of the Labour
Court for leave to exercise the right to appeal. Until that authority
is granted, there cannot be said to be an appeal pending before the
Supreme Court even though a purported notice of appeal has been
filed. It is important to relate the requirement for an application
for leave to appeal to the purposes thereof. These are for the
decision to be made on the questions whether the grounds of appeal
relate to questions of law and the existence of prospects of success
on appeal.”
It
follows from the above remarks that leave to appeal is not just there
for the mere asking.
A
party seeking to cross appeal must satisfy the requirement whether
the proposed grounds of appeal raise questions of law and whether
there are prospects of success on appeal before leave to appeal can
be granted. Therefore, the leave to appeal granted by the court a
quo
applies
to the appellant which sought leave and not to the first respondent.
In
casu,
the first respondent's submission that since the appellant had
already been granted leave to appeal, he was automatically entitled
by virtue of Rule 45 to lodge his cross appeal was ill conceived.
Whilst
the first respondent is entitled to file a cross appeal, he could
only exercise that right after complying with section 92F(2) of the
Act. Rules of court are subservient to an Act of Parliament. A party
cannot dispense with strict compliance with a statute on the basis
that rules of court accord him an entitlement.
In
Breastplate
Service (Private) Limited v Cambria Africa Plc
SC66/20 it was held at p12 that:
“….
It is trite that subsidiary or subordinate legislation cannot
override or purport to alter, whether expressly or impliedly,
anything contained in its parent or enabling statute, or indeed in
any other Act of Parliament. This proposition is so axiomatic that it
requires no case law or other learned authority to support it.”
The
cross appeal filed by the first respondent was a nullity for failure
to seek leave to appeal and had to be struck off the roll.
2.
WHETHER OR NOT THE SECOND RESPONDENT IS A LEGAL PERSON
Counsel
for the appellant argued that the first respondent erred in citing
the second respondent when the second respondent does not have legal
personality to be sued or to sue.
As
noted earlier, this point was not raised before the court a
quo.
It
is being introduced for the first time on appeal.
However,
this is a point of law and it is trite that a point of law can be
raised for the first time on appeal. (See ZIMASCO
(Pvt) Ltd v Marikano
2014
(1) ZLR 1 at 9EF).
The
Retrenchment Board is created in terms of section 4 of the Labour
Relations (Retrenchment) Regulations, 2003 (SI 186 of 2003). The
Regulations do not vest
legal personality
on
the second respondent. The
second respondent cannot therefore sue or be sued.
This
meant that the second respondent was not properly before the court
a quo.
Having
said that, the wrong citation of the second respondent is of no
moment as it does not affect the validity of an application for
review in the Labour Court.
It
is trite that such legal
technicalities and formalities have relevance in applications for
review before the High Court and not the Labour Court.
In TM
Supermarkets (Private) Limited v Bisset Chimhini
2019 (2) ZLR 30, GARWE JA (as he then was) remarked that:
“[28]
Although in terms of section 89(1)(d) of the Labour Act,
[Chapter 28:01],
the Labour Court shall exercise the same powers of review as does
the High Court, there is no provision, either in the Act itself or
the Rules of court made thereunder, requiring the citation of the
presiding officer in these circumstances.
[29]………………………………..
[30]
The strict rules of procedure and evidence that apply in the High
Court do not apply to proceedings before the Labour Court. Indeed,
the Labour Court Rules provide that matters coming before that court
must not be determined on technicalities but rather on the substance.
In this regard attention is drawn to Rule 12 of both the 2006
and 2017 Labour Court Rules. On a related aspect, the High Court
Rules, 1971 also provide that the non-joinder or misjoinder of a
party shall not defeat a cause or matter on that score alone.
[31]…………………………..
[32]
In my considered view, the failure to specifically cite the presiding
officer in review proceedings before the Labour Court cannot
constitute a fatal irregularity. In this case, there is a complete
record of the proceedings that took place before the hearing officer.
As counsel for the respondent correctly points out, there are no
other facts that she would have been required to set out to assist
the Labour Court in its determination of the matter.”
(See
also Mapondera
and 55 Ors v Freda Rebecca Gold Mine Holdings Limited (supra).
Whilst
the decision being impugned is that of the second respondent, the
dispute is between the appellant and the first respondent and remains
so in this appeal.
Contrary
to the appellant's submissions, the substantive respondent before
the court a
quo
was the appellant. It was properly before the court and was entitled
to be heard and the court a
quo
was obliged to determine the application before it.
3.
Whether or not the second respondent erred in declining jurisdiction
The
appellant submitted that the court a
quo's
finding that the second respondent erred when it declined
jurisdiction was flawed.
In
arriving at that finding, the court a
quo
relied
on section 12C(2) of the Act as presently worded and found that the
second respondent had jurisdiction to determine a dispute over a
retrenchment package.
As
correctly submitted by the appellant, the court relied on a wrong
provision in
establishing whether or not the second respondent had jurisdiction.
The following facts are common cause:
The
dispute between the parties commenced sometime in June 2014. The
appellant and the first respondent jointly referred the dispute
between them to the second respondent on 10 September 2014. Section
12C(2) was substituted by the Labour Amendment Act, 2015 (No.5 of
2015). The amendment Act was promulgated on 26 August 2015. The
Minister acted on the recommendations by the second respondent on 2
March 2015 before the amendment had been promulgated.
Section
12C(2) reads as follows:
“(2)
Unless better terms are agreed between the employer and employees
concerned or their representatives, a package (hereinafter called
'the minimum retrenchment package') of not less than one month's
salary or wages for every two years of service as an employee (or the
equivalent lesser proportion of one month's salary or wages for a
lesser period of service) shall be paid by the employer as
compensation for loss of employment (whether the loss of employment
is occasioned by retrenchment or by virtue of termination of
employment pursuant to section 12(4a)(a), (b) or (c)), no later than
date when the notice of termination of employment takes effect.”
In
terms of section 12C(2) as amended by the Labour Amendment Act, 2002
(No.17 of 2002), the power to determine whether an employee should be
retrenched and on what retrenchment package was vested in a works
council or an employment council. It read:
“A
works council or employment council to which notice has been given in
terms of subsection (1) shall forthwith attempt to secure agreement
between the employer and employee concerned or their representatives
as to whether or not the employee should be retrenched and, if they
are to be retrenched, the terms and conditions on which they may be
retrenched, having regard to the considerations specified in
subsection (11).”
It
follows that, as at the time the matter was referred to the second
respondent, it did not have power to consider the retrenchment
package due to an employee who is being retrenched.
The
first respondent submitted that the amended section 12C had
retrospective effect. He relied for the submission on section 18 of
Act No.5 of 15 which states that section 12 shall apply to every
employee whose services were terminated on three months notice on or
after 17 July 2015.
It
therefore follows, as rightly submitted by the first respondent, that
the amendment has a retrospective effect covering employees whose
services were terminated on or after 17 July 2015.
The
retrenchment of the first respondent was approved by the Minister on
2 March 2015 and with effect from 23 February 2015. The first
respondent did not therefore fall in the category of employees
covered under section 18 of the Act.
It
follows that the court a
quo
grossly
misdirected itself in relying on the wrong law in reaching its
decision that the second respondent had the jurisdiction to consider
the first respondent's retrenchment package.
In
Bell
v Voorsitter Van Die Rasklassifikasieraad En Andere
1968
(2) SA 678 (A) it was remarked that:
“It
is clear that our law accepts the rule that, where a statutory
provision is amended, retrospectively or otherwise, while a matter is
pending, the rights of the parties to the action, in the absence of a
contrary intention, must be decided in accordance with the statutory
provisions in force at the time of the institution of the action.”
See
also Rutsate
v Wedzerai & Ors
SC45/22.
The
court a
quo
was therefore enjoined to rely on the legislation prevailing as at
the time the retrenchment proceedings commenced.
It
is trite that reliance on the wrong law does not yield a valid
judgment. (See Madzokere
& Ors v The State
SC71/21).
The
judgment of the court a
quo
cannot
therefore stand.
DISPOSITION
The
court's finding that the second respondent did not have
jurisdiction to determine the first respondent's request for
re-quantification of the retrenchment package is dispositive of this
appeal. It is therefore not necessary to determine issues 4, 5 and 6.
It
was for the foregoing reasons that the court allowed
the appeal by the appellant and struck off the first respondent's
cross appeal.
BHUNU
JA: I
agree
MUSAKWA
JA: I
agree
Wintertons
Legal Practitioners,
the
appellant's legal practitioners
