Court name
Supreme Court of Zimbabwe
Case number
SC 29 of 2006
Civil Appeal 383 of 2004

Mugabe and Others v Zvimba Rural District Council (83/04) (SC 29 of 2006, Civil Appeal 383 of 2004) [2006] ZWSC 29 (30 July 2006);

Law report citations
Media neutral citation
[2006] ZWSC 29













REPORTABLE
(32)





Judgment
No. SC 29/06


Civil
Appeal No. 383/04








WILBERT
MUGABE AND 129 OTHERS






v





ZVIMBA
RURAL DISTRICT COUNCIL








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & MALABA JA


HARARE,
OCTOBER 18 2005 & JULY 31, 2006








L
Uriri
,
for the appellants





P
Matizanadzo
,
for the respondent








MALABA
JA: This is an appeal from a judgment of the Labour Court dated 16
December 2004 dismissing an application for an order
setting aside
the retrenchment of the appellants from employment with the
respondent.






The
first appellant, Wilbert Mugabe, was the chairman of the Workers
Committee. On 29 September 2003 the appellants were served
with
notices to the effect that their contracts of employment were to be
terminated on 30 October on retrenchment. On 30 October
2003 they
received payment of varying sums of money in cheques as part of the
retrenchment package. They thereafter left employment.






On 11 November
2003 the applicants made an application to the Labour Court
challenging the validity of their retrenchment on the ground
that it
was not carried out in accordance with the procedure prescribed under
s 12 of the Labour Relations Act [
Chapter
28:01
].
The court
a
quo

held that there had been an agreement on the retrenchment, its terms
and conditions between the appellants and the respondent which
was
approved by the Works Council. It held that there was compliance
with the legal requirements for a lawful retrenchment set
out in s
12C of the Act.






The
appellants appealed on the grounds that:






“1. The
court
a
quo

erred in holding that the respondent had complied with the legal
requirements for the retrenchment of appellants.







2. The court a
quo
seriously
erred and failed to appreciate that respondent did not have a
properly constituted Works Council.







3. The court a
quo

erred in holding that the appellants were bound by the decision of
the Works Council.







4. The court a
quo

further erred in holding that there was agreement between the
parties.”





None
of the grounds of appeal is in my view sustainable on the facts of
the case. The facts are these:





In
2002 the respondent found itself with a redundant work force after an
amalgamation of five local authorities. As a result there
were many
areas of duplication of roles and responsibilities of employees.
The respondent was incurring a huge wage bill for a
redundant work
force.





At a
meeting of representatives of the respondent and those of employees
held on 17 September 2002 the need to have workers who were
mainly
general hands retrenched was discussed. The respondent’s
representatives put forward the proposed retrenchment package
and the
representatives of workers were asked to come up with their own
proposal on the retrenchment package. At a meeting held
on 12 June
2003 the workers’ representatives put forward their proposal for
the retrenchment package which was as follows:







“(a) Three months notice pay;



(b) Five
months salary for every year served;



(c) $210 000 to cover
relocation expenses;



(d) Severance package of five
months salary;



(e) Three
months notice for those staying in council houses;



(f) For those on medical aid
to continue for six months and




(g) Financial assistance should remain for six months.”





Most of the
items proposed by the workers’ representatives to be included in
the retrenchment package were accepted by the respondent.
The
package which was finally agreed upon by the parties at a meeting
held on 20 June 2003 was as follows:






“(a) One month notice



(b) Three months pay for loss
of job



(c) One month salary
for each year of service (factoring in 70% on current salaries)



(d) Payment
of other terminal benefits like pensions and cash
in
lieu

of leave



(e) Relocation assistance
within Zvimba District



(f) Free treatment at Council
Clinics for three months



(g) Three
months notice for those in Council accommodation.”





On 17
July 2003 the respondent gave notice to the Works Council of its
intention to retrench the workers whose names it listed.
The notice
which was on Form LRR1 read:







“NOTICE
OF INTENTION TO RETRENCH









To: Zvimba
RDC Works Council







Kindly
take note that Zvimba Rural District Council of Private Bag 2001
Murombedzi intend to retrench the employees whose names are
listed in
Annexure 1 and seek approval to effect such retrenchment. Our
reasons for the retrenchment are listed in Annexure 2 to
this
notice.”





On
the same day the first appellant in his capacity as the chairman of
the Workers Committee and the secretary thereof sent a memorandum
to
the respondent which they signed. It reads:







“ZVIMBA
RURAL DISTRICT COUNCIL


We
members of the Workers Committee have agreed to the conditions for
retrenchment as shown in Annexure 2.”






Annexure 2 referred to in the
memorandum contained the proposed retrenchment package agreed upon by
the parties on 20 June 2003.






The
Works Council gave notice to the respondent on Form LRR2 on 17 July
2003. It reads:






“APPROVAL
OF RETRENCHMENT OF EMPLOYEES





The
Zvimba RDC Works Council hereby grants approval to Zvimba Rural
District Council of Private Bag 2001 Murombedzi to retrench the
employees whose names are listed in Annexure 1 to this form on 1
September 2003 subject to the terms and conditions which are listed
in Annexure 2.”






Annexure 2 referred to in the
notice of approval of the proposed retrenchment contained the
retrenchment package accepted by the workers’
representatives.






On
29 September 2003 the respondent gave each retrenchee a notice of
termination of employment. It wrote:






“This
serves to advise you that due to the retrenchment exercise being
undertaken by the Organisation the Zvimba Rural District Council
will
terminate your service of employment with effect from the 31
st
of October 2003.






During this notice period you are
required to communicate with the Administration Department pertaining
payment of your package which
will be based on the following
bargaining agreement terms.” (The retrenchment package mentioned
in the judgement was then set
out).








It
is clear from these documents that the finding by the court
a
quo
that there was an
agreement between the representatives of the respondent and those of
the employees on the need for the retrenchment
and on its terms and
conditions was supported by evidence. The agreement on the terms
and conditions of the retrenchment was not
reached within the Works
Council. A careful reading of the finding by the learned President
that the approval by the Works Council
suggested “
that
the parties
agreed
on the retrenchment package
”
does not, as contended by Mr
Uriri,
justify the conclusion that the agreement referred to was between
members of the Works Council. The case of
Fungura
& Anor v Zimnat Insurance Company Limited
2000(1)
ZLR 379(H) relied upon by counsel is of no assistance. The
principle that a Works Council is an entity separate from the
employees and employers and that its duty is to secure an agreement
between these parties or their representatives was not put in
issue
by the facts of this case. I accept the contention by Mr
Matizanadzo
that the fact of the signed approval of the retrenchment by the Works
Council is
prima facie
evidence of the existence of an agreement on the retrenchment package
between the parties. That was the basis of the finding made
by the
court
a quo.





It
was not a ground of appeal that there was no Works Council for the
establishment. What was alleged was that it was not properly
constituted. There was no evidence on the papers to suggest that
the Works Council was not properly constituted. On 17 July 2003
when it approved the retrenchment of the appellants on the terms and
conditions agreed upon by the parties, the question whether
the Works
Council was made up of equal members representing the employer and
employees was raised at a meeting held on 12 June 2003.
The
chairman ruled that the Works Council was properly constituted and
the meeting proceeded with its business. The fact that
the Works
Council may not have been properly constituted on 12 June would not
be evidence that it was not properly constituted on
17 July 2003.
The
onus
was on the appellants to show that the Works Council was in fact not
properly constituted on that day.





The
last question for determination is whether the court
a
quo
misdirected itself
in holding that the respondent had complied with the legal
requirements for the retrenchment of the appellants.
Section 12C of
the Act is relevant. It provides that:






“(1) An employer who wishes to
retrench five or more employees within a period of six months shall –





(a) give
written notice of his intention-







(i) to the Works Council
established for the undertaking.







(ii) ….







(iii)….




(b) provide
the Works Council … with details of every employee whom the
employer wishes to retrench and of the reasons for the proposed
retrenchment, and







(c) send a copy of the notice to
the Retrenchment Board.







(2) A Works Council to which
notice has been given in terms of subs (1) shall forthwith attempt to
secure agreement between the employer
and employees concerned or
their representatives as to whether or not the employees should be
retrenched and, if they are to be retrenched
the terms and conditions
on which they may be retrenched, having regard to the consideration
specified in subs (ii).







(3) If, within one month after
receiving notice in terms of subs (1), a Works Council secures an
agreement between the employer and
employees concerned or their
representatives on the matters referred to in subs (2), the Works
Council shall –






(a) send
the employer its written approval of the retrenchment of the
employees concerned in accordance with the agreement, and






(b) send
the Retrenchment Board a copy of the approval.







(4) …







(5) No employer shall retrench
any employee without affording the employee the notice of termination
to which the employee is entitled.”





The
object of the requirement of the steps to be taken in accordance with
the procedure for the retrenchment of employees prescribed
under s
12C of the Act is to ensure that the retrenchment is by agreement
between the employer and employees concerned or their representatives
with the approval of a third party. The role of the Works Council
in the prescribed procedure is not to have an agreement reached
between its own members. Its role is that of a mediator to secure
an agreement on the retrenchment, its terms and conditions between
the employer and the employees concerned or their representatives.


See
Prosser & 35 Ors v
Ziscosteel
HH 201 –
93;
Chidziva & Ors
v Zisco
1997 (2) ZLR
368(S);
Nyangoni &
14 Ors
v ZDC
HH – 34 - 98






In this case the representatives
of the employer and the employees concerned reached an agreement on
the retrenchment, its terms and
conditions without the involvement of
the Works Council. The Works Council which was required by law to
approve the retrenchment
in terms of the agreement did so. The
retrenchment therefore was to be carried out in accordance with the
approval granted in terms
of s 12C of the Act. The employer gave
the employees concerned written notice of termination of their
employment as it was obliged
to do in terms of s 12C (5) of the Act.






Mr
Uriri’s
submission that the retrenchment of the appellants was not in
accordance with the procedure prescribed under s 12C of the Act
cannot be correct in light of the finding that the court
a
quo
correctly found
that there was an agreement on the retrenchment package between the
representative of the employer and the employees
concerned.





I
would accordingly dismiss the appeal with costs.










CHIDYAUSIKU CJ: I agree.



















SANDURA  JA: I agree.





Messrs
Honey & Blanckenberg
,
appellant's legal practitioners



Manase & Manase,
respondent's legal practitioners