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Daniel Nemukuyu Senior Court Reporter
Some 161 former National Railways of Zimbabwe workers, whose contracts were recently terminated on notice, have filed an urgent chamber application at the High Court seeking to nullify their expulsion.

The workers were shown the exit door with effect from August 1 this year after the Supreme Court ruled that termination on notice was competent.

However, the Zimbabwe Amalgamated Railway Workers’ Union and the 161 workers, on Friday filed an application to stop NRZ from issuing out more notices and to nullify the terminations made on the basis that the notices were defective.

They also seek to interdict NRZ from evicting the workers from company houses.

The workers want an order barring the company from stopping payment of salaries to the affected members.

It is the group’s application that the NRZ is barred from employing other people to replace the 161 workers.

The group argued in the High Court application that the Supreme Court judgment relied upon by NRZ did not allow employers to disguise retrenchment as termination on notice.

It was argued that NRZ was in a serious viability crisis and the proper route to take was to retrench the workers and not disguise the retrenchment exercise as termination on notice in terms of Section 12(4) of the Labour Act.

“It is not a secret that respondent has been in financial doldrums and has failed to pay workers’ salaries on time. Salaries are over 24 months in arrears.

“Not so long ago, respondent expressed its financial difficulties and that it was seeking a way forward with regard to its operations and the Minister of Roads and Transport stated categorically, that retrenchment was not an option.

“Given the respondent’s much publicised challenges, it is understandable that respondent should want to contain costs, and a particular attraction would be reducing the workforce and the costs attendant to employment of labour,” reads the application.

While the NRZ’s challenges may be understandable, the workers argued, the company must take lawful measures that considers the interests of the workers.

The workers argued that their employer wrongfully embraced the Supreme Court judgment in the Zuva Petroleum case and terminated their contracts of employment when their circumstances were different.

“I am advised, and verily believe it to be true that the Supreme Court did not in the Nyamande and Another (Donga) vs Zuva Petroleum SC43/15, consider the subject of retrenchment, which is covered by Section 12C of the Labour Act.

“The issue of retrenchment was not before the Supreme Court for decision. Significantly, in the Nyamande matter the contracts had expired by effluxion of time, which is not the case in this matter,” read the papers.

In its opposing papers filed by Mr Alec Muchadehama of Mbidzo, Muchadehama and Makoni law firm, NRZ argued that termination on notice was proper and lawful under the circumstances and that the High Court cannot be asked to nullify the Supreme Court’s judgment.

“The Supreme Court has ruled that termination on notice is competent. Why should this court be called upon to decide on the same question?

“Further, the court is bound by the decisions of the Supreme Court. It would therefore, be unprocedural and against the dictates of precedent that the High Court seeks to hear the matter and arrive at another decision,” reads the papers.

The NRZ argued that the application had been overtaken by events and that it must be thrown out.

“The terminations have already been effected. There is no longer anything to interdict. Applicants may seek other remedies such as damages for unlawful loss of employment, if they are able to prove it.”

The matter is yet to be set down for hearing.