Sacked Zuva managers turn to ConCourt

via Sacked Zuva managers turn to ConCourt | The Herald July 30, 2015

THE Constitutional Court will tomorrow hear the case in which two Zuva Petroleum managers, Mr Don Nyamande and Mr Kingstone Donga, are seeking an order for their job sacking appeal to be heard on an urgent basis. Mr Nyamande and Mr Donga recently lost their challenge against termination of employment on notice at the Supreme Court and they now want the Constitutional Court to quash the judgment on constitutional grounds.

Their judgment was embraced with speed by many companies resulting in thousands losing jobs in the first week of the issuance of the judgment.

Justice Vernanda Ziyambi is expected to hear the chamber application to determine whether or not the main appeal should be set down urgently.

Chief Justice Godfrey Chidyausiku and four others, sitting as the Supreme Court’s full bench, recently dismissed an appeal by Mr Nyamande and Mr Donga on the basis that the common law rule that places the employer and the employee on an equal footing was still valid.

The court held that Section 12B of the Labour Act did not abolish the common law position hence the employer was entitled to terminate employment on notice the same way workers do whenever they leave employment.

That prompted the duo to file an appeal at the Constitutional Court.

While the appeal was pending, the pair also approached the Constitutional Court with an urgent chamber application to have their main challenge heard on an urgent basis.

In the urgent application filed by Matsikidze and Mucheche law firm, the pair urged the court to treat the matter with urgency considering that thousands of workers had been fired in a week on the basis of the contested judgment.

The applicants’ lawyers urged the Constitutional Court to be mindful of the crisis that had hit the industry in Zimbabwe in a week.

The lawyers said it was critical for the court to quickly determine the matter.

In the main constitutional appeal, Mr Nyamande and Mr Donga are now challenging the constitutionality of the law relied upon by the Supreme Court in throwing out their appeal.

The two’s lawyers argued that the Supreme Court erroneously ruled without seeing copies of contracts of employment between the two managers.

The lawyers argued that the court ought to have considered the fact that the underlying cause of the termination of the appellants’ contracts of employment in respect of the two managers was retrenchment and Zuva Petroleum had to abandon the retrenchment route it had already initiated.

It was argued that the court could have found that termination on notice violated the purpose of Section 2A of the Labour Act as read together with the provisions of International Labour Organisation Convention 158 which stipulates that termination should only be done when there is a valid cause.

The lawyers further argued that the Supreme Court violated Section 3 of the Constitution.

The Supreme Court, the lawyers argued, erred by not applying Section 5 Statutory Instrument 15 of 2006 that prohibits termination on notice because it infringes Section 56 of the Constitution.

It was argued in the papers that the court applied a non-existent rule of the common law, thereby infringing the duo’s rights enshrined under Section 56 and 65 of the Constitution of Zimbabwe.

The court, the lawyers argued, erred when it concluded that Section 12B of the Labour Act does not prohibit termination of employment on notice.

The pair wants the Constitutional Court to quash the judgment of the Supreme Court and to declare it unconstitutional.