Air Zimbabwe wins retrenchment case

THREE-HUNDRED former Air Zimbabwe workers have lost their appeal against retrenchment after the Labour Court ruled they waived their right to object to the procedural irregularities by accepting retrenchment packages.

 The workers were appealing against the decision of March 31 last year by the national employment council for the air transport industry in favour of the employer.

The workers, who were sacked following the infamous Zuva Petroleum judgment in 2015 with just three months pay in lieu of notice, successfully challenged the decision at Supreme Court in 2020 and were reinstated with full benefits.

The Zuva decision has in any case been overtaken by changes in the Labour Act.

However, the airline placed them on unpaid leave when they did return, while it worked out what to do next.

But while they were on the forced leave the airline was placed under administration in terms of the Reconstruction of State Indebted Insolvent Companies Act, and that changed everything since the administration process requires an entity to be converted to a viable enterprise.

 So the airline then initiated a retrenchment process for the workers in March 2021 and paid them the minimum terminal benefits in terms of the Labour Act. The workers challenged the decision before the NEC for the air transport industry and lost when the decision was made last year.

 However, on appeal the Labour Court upheld the NEC decision, finding that by taking and consuming the retrenchment packages the workers waived their right to challenge the process, even though they claimed it was fraught with illegalities.

"The appellants (workers) were reinstated and they waived their right to the procedure for retrenchment," said Justice Custom Kachambwa.

"The appeal has no merit in the circumstances. It is accordingly held that the appeal be and is hereby dismissed with costs."

 Workers who accept their retrenchment packages, cannot then claim that they have not accepted the terms and conditions of the retrenchment. This is firmly established in past case law. Even the Supreme Court has agreed that when retrenchment procedure has not been followed, employees who accept packages may be taken to have waived their right to object the procedural irregularities.

 It was on this basis that Justice Kachambwa concluded that the workers knew of and accepted the retrenchment conditions when they accepted the back pay which was more than they were owed.

 "They cannot then cry foul saying that they did not know that the back pay included their retrenchment package," he said. "Ignorance of the law is not an excuse. The appellants received and acknowledged receipt of retrenchment letters.

"They acknowledged receipt of the letters by appending their signatures and hence they cannot then say they did not read the contents and claim that they were not notified of the termination."

Through their lawyer Mr Caleb Mucheche, the workers did not deny the fact that the employer had the right to retrench employees but argued that this right had to follow the retrenchment procedure in terms of section 12C(1) of the Labour Act.

Ms Ellen Nyamanhindi, who presided over the case at the NEC hearing, acknowledged that the retrenchment process was flawed and yet went on to determine in favour of the employer, reasoning that the workers benefited from a flawed process, which they denied. They argued that no evidence was presented to show the benefits reaped were from that process.

Mr Mucheche argued that since retrenchment is effected in terms of section 12C(1) of the Labour Act, then failure to follow proper retrenchment procedures by the employer nullified and rendered such conduct void. He said AirZim's conduct of refusing to comply with or implementing the Supreme Court judgment of December 2020 was an illegality which fell within the ambit of unfair labour practice as prescribed under section 8 of the Labour Act.

Arguing the case for Air Zimbabwe, Mr Obert Kondongwe submitted that the Supreme Court judgment was complied with and that the decision to place the workers on unpaid leave was an administrative decision because the company was under reconstruction.

He said the legally appointed administrator retrenched the employees in terms of the Reconstruction of State- Indebted Insolvent Companies Act. Mr Kondongwe stressed that the administrator has the power to retrench employees at a company before reconstruction if retaining them prejudices its viability.