BY JAMES MUTASA

A Labour Court Judge Lillian Kudya recently ordered Zimbabwe Mining and Smelting Company (ZIMASCO) to reinstate 140 employees it had unfairly retrenched to their original positions without loss of salary and benefits and to reinstitute fresh retrenchment processes in a proper manner with the assistance from the retrenchment board if it so desires.

According to Kudya’s judgment both ZIMASCO (Pvt) Ltd and its 140 employees had approached the Labour Court on appeal and 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 140 employees who were represented by Munyaradzi Gwisai of Matika, Gwisai and Partners Legal Practitioners went to arbitration challenging a retrenchment process 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.

Irked by the arbitrator’ award ZIMASCO represented by Katsande of Maguchu and Muchada Business Attorneys Legal Practitioners appealed to the Labour Court seeking 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, Gwisai on the employees’ stead challenged the employer’s appeal and cross appealed arguing that the arbitrator should have ruled that a flawed retrenchment process amounted to unlawful dismissal in which case the 140 employees should be reinstated to their original jobs without loss of salary and benefits.

In her judgment the honourable judge pointed out that parties caucused on the issue and resultantly agreed that only a single issue stood for determination. ‘It was clear from the appeal and cross appeal that both parties were unhappy with the award and that it should be vacated.

 “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,” reads part of the Labour Court judgment.

“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”.

The judge highlighted that, “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 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 by the employer.”

Kudya concluded her judgment thus, “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”.