NYAMANDE & DONGA v ZUVA PETROLEUM (PVT) LTD [SC 43-15]

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA & GUVAVA JA

HARARE, FEBRUARY 3 & JULY 17, 2015

 

L Madhuku, with him C Mucheche, for the appellants

T Mpofu, for the respondent

CHIDYAUSIKU CJ:   This is an appeal from a judgment of the Labour Court delivered on 28 March 2014 allowing termination of the appellants’ employment contracts on notice.

The facts of this case are common cause. They are as follows. The appellants were employed by BP Shell as supply and logistics manager and finance manager. BP Shell sold its services as a going concern to Zuva Petroleum, the respondent. A transfer of undertaking was done in terms of s 16 of the Labour Act [Chapter 28:01] (hereinafter referred to as “the Act”) and an agreement of sale concluded. The appellants were transferred to the new undertaking without derogation from the terms and conditions of employment that they enjoyed when they were under BP Shell.

On 21 November 2011 the respondent offered its employees, who included the appellants, a voluntary retrenchment package which was declined. On 15 December 2011 the respondent served each of its employees, including the appellants, with a compulsory notice of intention to retrench. The appellants and the respondent could not agree on the retrenchment terms. Having failed to agree on the terms of retrenchment, the parties referred the dispute to the Retrenchment Board. On 16 May 2012 the Ministry of Labour and Social Services directed the parties to carry out further retrenchment negotiations for another twenty-one days. On 18 May 2012, and before the expiry of the twenty-one days, the respondent wrote letters to the appellants, terminating their contracts of employment on notice, as was provided for in the contracts of employment signed by both parties, with effect from 1 June 2012.

The respondent paid the appellants cash in lieu of notice and thus terminated the employment relationship. The appellants approached a labour officer, contending that their employment contracts had been unlawfully terminated. The labour officer failed to resolve the matter and referred it to compulsory arbitration. The arbitrator concluded that the termination of the contracts of employment was unlawful because the appellants had not been dismissed in terms of a code of conduct.

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