Court name
Supreme Court of Zimbabwe
Case number
SC 14 of 2002
Civil Appeal 217 of 2000
Case name
Nkomo and Others v Rubber and Allied Products (Pvt) Ltd. and Another ( 217/2000)
Law report citations
Media neutral citation
[2002] ZWSC 14
















REPOPRTABLE
ZLR (15)


Judgment
No. S.C. 14/02


Civil
Appeal No. 217/2000








(1) AGNES
NKOMO (2) J      SHANA
(3) T      MAUTO
(4)
J      MUNANGA (5)
K      MUJABUKI (6)

T      CHIMBANI (7)
C      PENYAI (8)
S      BHAJILLA
(9)
K      CHIMANIKIRE





v





(1)
RUBBER AND ALLIED PRODUCTS (PRIVATE) LIMITED


(2) THE
CHAIRMAN OF THE RETRENCHMENT COMMITTEE
N.O.








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & MALABA JA


HARARE,
JANUARY 21 & MAY 14, 2002








T
Biti
,
for the appellants





E
K Mushore
,
for the respondents





SANDURA  JA:
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants’ application
for an order
directing the first respondent to pay to them the salaries and
benefits due to them with effect from 1 September
1999.





The
background facts are as follows. The appellants were employed by
the first respondent, a wholly owned subsidiary of Dunlop
South Africa. In 1999 Dunlop decided to sell the business and
assets of the first respondent to Dunlop Zimbabwe Limited (“Dunlop
Zimbabwe”). As the appellants could not be absorbed by Dunlop
Zimbabwe, the first respondent decided to retrench them.





Accordingly,
on 28 June 1999 the first respondent gave written notice of the
proposed retrenchment to the works council in
terms of s 3(1)(a)(i)
of the Labour Relations (Retrenchment) Regulations, 1990, published
in Statutory Instrument 404 of 1990
(“the Regulations”). The
notice was copied to the chairman of the retrenchment committee in
the Ministry of the Public Service,
Labour and Social Welfare as
required by s 3(1)(c) of the Regulations.





The
first respondent’s business and assets were sold and transferred to
Dunlop Zimbabwe on 1 July 1999, i.e. three days after
the notice
of the proposed retrenchment was sent to the works council.





The
appellants objected to the proposed retrenchment and, after two
meetings of the works council, the workers’ representatives
on the
council refused to participate in the retrenchment negotiations,
alleging that the provisions of the Regulations had not been
complied
with.





Thereafter,
on 30 July 1999 the first respondent wrote to the principal
labour relations officer alleging that by refusing
to participate in
the retrenchment negotiations the appellants and their
representatives on the council were acting in bad faith
and were
indulging in an unfair labour practice.





Subsequently,
on 25 August 1999 a hearing was conducted by a labour relations
officer, who issued a determination directing
the parties to continue
with the retrenchment negotiations. The determination further
provided that in the meantime the appellants
could go on paid leave.





When
the appellants’ attitude to the retrenchment negotiations did not
change, the first respondent wrote to each appellant in
August 1999
informing him that he was to go on paid leave for the duration of his
accumulated leave, and that thereafter he would
go on unpaid leave
until the proposed retrenchment was finalised.





About
two weeks later, on 7 September 1999, the works council referred
the dispute to the retrenchment committee. In the
result, the
Minister of the Public Service, Labour and Social Welfare (“the
Minister”), acting on the advice of the retrenchment
committee,
refused to approve the proposed retrenchment.






However, the
Minister’s decision was taken after the appellants had filed the
court application in the court
a quo
seeking the relief already referred to. Neither party knew of the
Minister’s decision when the application was heard. The
application
was prompted by the first respondent’s decision to
place the appellants on unpaid leave.






The learned
judge who heard the matter in the court
a quo
was of the view that the appellants should have complied with the
labour relations officer’s determination issued on 25 August
1999, directing the parties to continue with the retrenchment
negotiations or let the retrenchment committee determine the matter.

He, therefore, dismissed the appellants’ application with costs.
Aggrieved by that decision, the appellants appealed to this
Court.






What
happened in this case shows that both the first respondent and the
appellants overlooked the provisions of s 16(1) of
the Labour
Relations Act [
Chapter 28:01].
That section reads as follows:





“16 (1) Subject
to this section, whenever any undertaking in which any persons are
employed is alienated or transferred in any
way whatsoever, the
employment of such persons shall, unless otherwise lawfully
terminated, be deemed to be transferred to the transferee
of the
undertaking on terms and conditions which are not less favourable
than those which applied immediately before the transfer,
and the
continuity of employment of such employees shall be deemed not to
have been interrupted.”





When
the provisions of this section are applied to the facts of the
present case, the legal position is as follows. When the first
respondent’s assets and business were transferred to Dunlop
Zimbabwe on 1 July 1999 the appellants became employees of
Dunlop
Zimbabwe with effect from that date, and with conditions of
service not less favourable than those which applied to them before
the
transfer of the undertaking.





This
also means that with effect from 1 July 1999 the appellants
ceased to be employees of the first respondent and, consequently,
the
written notice of the intention to retrench them which was given by
the first respondent to the works council on 28 June
1999 fell
away. If the new employer, Dunlop Zimbabwe, wanted to retrench the
appellants, it was obliged to give written notice
of its intention to
do so to its works council in terms of s 3(1)(a)(i) of the
Regulations.





In
the circumstances, the appellants’ application in the court
a quo
was misconceived. As already stated, in that application the
appellants sought an order directing the first respondent to pay to
them the salaries and benefits due to them with effect from
1 September 1999. However, payment of those salaries and
benefits
was no longer the first respondent’s obligation because it
was no longer the appellants’ employer. It was in fact the
obligation
of Dunlop Zimbabwe, the new employer, to pay the
appellants’ salaries and benefits with effect from 1 July
1999. The application
should, therefore, have been brought against
Dunlop Zimbabwe.





In
my view, the appeal cannot succeed. However, as far as the costs of
the appeal are concerned, I shall make no order because
all the
parties laboured under a misapprehension as to who the appellants’
employer was. By persisting with the retrenchment
exercise after
1 July 1999 the first respondent must have led the appellants to
believe that it was still their employer.





In
the circumstances, the appeal is dismissed with no order as to costs.








ZIYAMBI
JA: I agree.








MALABA 
JA: I agree.








Honey
& Blanckenberg
,
appellants' legal practitioners


Coghlan,
Welsh & Guest
,
respondents' legal practitioners