Air Zimbabwe loses Supreme Court appeal

THE Supreme Court has dismissed an appeal by Air Zimbabwe challenging a ruling by the Labour Court ordering it to reinstate over 300 workers whose contracts were unlawfully terminated without notice back in 2015.

The Labour Court had given Air Zimbabwe (Pvt) Ltd a 60-day ultimatum to either reinstate or pay damages to 300 workers whose contracts were unlawfully terminated on three months' notice in 2015.

In 2017, Labour Court judge, Emilia Muchawa found that although Air Zimbabwe (Airzim) ended the contracts in the spirit of the infamous Zuva Petroleum judgment of July 17, 2015, Section 24 of the Finance Act Number 8 of 2015, gave retrospective effect to the Labour Amendment Act, Number 5 of 2015.

This followed an application by the aggrieved workers who collectively lodged a complaint of unfair dismissal with the Labour Court.

Unhappy with the Labour Court ruling, Air Zimbabwe took the matter to the Supreme Court saying the court had misfired.

But judges Paddington Garwe, Susan Mavangira and Lewis Mathonsi dismissed Air Zimbabwe's appeal with costs saying it was misplaced.

"At the end of the day, therefore, the order granted by the court aquo was one within contemplation of the labour officer, the amendment having been made merely to ensure that the confirmed order accorded with the dictates of the law.

"I am of the considered view in light of the above sentiments that the changes effected by the Labour Court were indeed amendments and that they cannot by any stretch of imagination, be termed a substitution," said Garwe in his judgement.

"As noted earlier in this judgement, labour officers are often lay persons with little or no experience in matter legal."

He said for that reason, they are given the power to make draft rulings which are then subjected to scrutiny by the Labour Court specialised in matters of labour and employment.

"For the above reasons, I find that there is no merit in this appeal. The amendments effected by the court aquo in the process of confirming the draft ruling were completely consistent with the laws which allow confirmation with or without amendments.

The Labour Amendment Act, through Section 12(4a), outlawed arbitrary termination of employment on notice and set the parameters in which such termination should be done.

The new law only allows termination on notice in circumstances where one is employed on a fixed contract basis or has consented to the termination of contract.

Muchawa ruled that Airzim unlawfully terminated the 300 employees' contracts and ordered that they be reinstated or be paid a reasonable compensation for damages.

In her ruling, Muchawa said, "Having already found that the second to 301st respondents' contracts were not terminated pursuant to Section 12(4a), it follows that they do not fall in the categories of those to be paid the minimum retrenchment package. Further, the primary remedy for unfair dismissal is reinstatement.

"Where the court makes an order for reinstatement, it must also make an order for damages as an alternative to reinstatement.

"Consequently, the judge confirmed the reinstatement order.

"The first respondent (Airzim) unlawfully and unfairly terminated the contracts of the remaining 2nd to 301st respondents.

"The first respondent be and is hereby ordered to, within 60 days of this order, reinstate the workers to their positions without loss of pay and benefits.

"If reinstatement is no longer tenable, the first respondent is to pay the damages in lieu of reinstatement which the parties are to negotiate, failing which either party can approach the applicant for quantification."