Online Reporter
Fidelis Munyoro-Chief Court Reporter
THE Labour Court has dismissed Destiny Electronics (Pvt) Ltd’s appeal against an arbitral award, ruling that its attempt to retrench rental administration manager Dzidzai Magada Marozva did not comply with the Labour Act and amounted to unfair dismissal.
Justice Clever Tsikwa ruled that the employer did not follow the mandatory retrenchment procedure before directing the employee to stop reporting for duty.
“The court comes to the conclusion that there was no retrenchment to talk about and the decision of the arbitrator cannot be faulted,” the judge said.
The court also ordered the firm to pay Ms Marozva’s legal costs.
The dispute arose after the company, which was placed under judicial management in 2015, began discussions on retrenchment in August 2024.
No agreement was reached. On September 2, 2024, Ms Marozva was instructed to surrender her office keys and stop reporting for duty without receiving written notice.
After conciliation failed, the dispute proceeded to arbitration, where the arbitrator ruled in the employee’s favour. The company then appealed to the Labour Court.
The employer argued that it had complied with section 12C of the Labour Act by notifying the Retrenchment Board and engaging the employee.
It also contended that retrenchment falls within the employer’s discretion and that the arbitrator erred in finding unfair dismissal.
Justice Tsikwa rejected those submissions.
“The above are the only functions of the Board and do not include the power to approve retrenchments,” the judge said while interpreting the Labour (Retrenchment) Regulations.
The court held that although the Retrenchment Board has no authority to approve retrenchments, employers must still comply with the procedures laid down in sections 12C and 12D of the Labour Act.
Justice Tsikwa found that the employer failed to consult the works council where required, failed to provide the Retrenchment Board with the information prescribed by law, failed to undertake measures to avoid retrenchment under section 12D and removed the employee from the workplace before completing the statutory process.
“Whilst the retrenchment Board did not need to approve the retrenchment, the procedure adopted by appellant did not show any serious commitment to the retrenchment process,” the judge said.
The court noted that Ms Marozva, who was being represented by Mr Caleb Mucheche, was told to stop reporting for duty before any retrenchment package had been agreed, before the minimum package had been paid and without an exemption application where the employer claimed financial incapacity.
Justice Tsikwa said Ms Marozva remained on the payroll until the retrenchment process was completed in accordance with the law.
“That was unlawful because before an employer pays retrenchment package the employee must remain on payroll.”
The employer also argued that the respondent could not have been unfairly dismissed because her employment had already ended through retrenchment. The court disagreed.
“This termination for operational requirements was not properly executed such that it cannot be justified, rendering it unlawful termination of employment,” Justice Tsikwa said.
The judge said the employer also failed to terminate the employment contract through methods recognised under Section 12 (4a) of the Labour Act.
Although the court found that the arbitrator had erred by deciding a pregnancy discrimination claim that fell outside the agreed terms of reference, Justice Tsikwa said that issue was not one of the employer’s grounds of appeal and could not be revisited.
The appeal was dismissed in its entirety, leaving the arbitral award in favour of Ms Marozva intact.
