THE Bulawayo High Court has authorised the eviction of 53 former employees and their families at Olympus Gold Mine after they refused to work for the new mine owner.
Olympus Gold Mine (Pvt) Ltd trading as Old Nic Mine is now owned by Retinue Stars Investments (Pvt) Ltd which bought the business after it encountered serious financial challenges in 2015.
According to the background, to avoid its liquidation which would have led to its workers having their contracts terminated, the mine, in consultation with the works council, agreed that it be placed on “care and maintenance” in terms of which it would cease to operate but retain skeletal staff which would provide security and safety at the mine.
Workers who were not part of the skeletal staff were placed on unpaid leave with the intention that, if the situation improved, they would return to work. It took that measure in agreement with the affected employees, the respondents included. The affected workers stopped working and they ceased to receive their salaries and/or wages.
In September 2016, Retinue, the applicant, purchased the mining business from Old Nic Mine. It undertook to employ the mine’s former workers.
“Its undertaking was premised on the condition that the workers would not claim from it any money which was due to them from Old Nic Mine for the period that they were on unpaid leave,” read court papers.
The court heard a majority of the mine’s former workers agreed to the condition. They were therefore re-engaged and their contracts of employment taken over and carried forward by Retinue. Lyton Ndlovu and his 53 colleagues, cited as respondents in court papers, did not agree to the condition which Retinue proposed to others and them.
The mine then refused to re-engage them. They, however, continued to occupy the houses which the mine allocated to them in terms of their employment contracts. The position which they took made the applicant take the view that they ceased to be its employees.
The view which it took persuaded it to evict them from the houses which they were in occupation of in terms of their contract with the applicant’s predecessor. It, accordingly, served notices upon them to vacate the houses which they are occupying at the mine. The respondents refused to leave the houses, prompting the mine to file this application.
Retinue urged the High Court to order the respondents to vacate its properties within 48 hours of the court’s order, failing which the Sheriff would be authorised to evict them.
Ndlovu and colleagues however opposed the application. They maintained that the contracts which they concluded with the mine remain binding. The respondents also said their occupation of the houses which the mine allocated to them is lawful.
They insist that their contracts have not yet been terminated in terms of the law. It was their statement that the applicant took over all the obligations of its predecessor. They state that its effort to impose a condition of re-engagement upon them is both unlawful and a nullity.
Ndlovu and company also insisted that they remain employees of the mine until their contracts of employment are lawfully terminated. They insist that their contracts are still extant and that there is therefore no basis for them to be evicted from the houses. The former employees also said Retinue approached the National Employment Council with a view to dismissing them from work and the matter was still pending finalisation.
The applicant, they insist, is approbating and reprobating in the sense that it alleges, on the one hand, that they are not its workers and, on the other, that they should be dismissed from work. The High Court said the mine owns the houses and this does not require any debate.
Mangota also noted that section 2 of the Labour Act [Chapter 28:01] is relevant to the resolution of the parties’ dispute.
“It defines the word ‘employee’ to refer to any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in the Act.
“The respondents insist that the fact that the applicant took over the business of its predecessor and, therefore, the latter’s obligations.
“The applicant’s statement, on the same point, is to the contrary. It insists that the respondents do not work for it. It states that they refused to work for it.
“Simple mathematical calculation shows that the respondents have not worked for the applicant for six years running. The applicant, on its part, has not given work to them for the stated duration. Nor has it paid any salaries or wages to them for the mentioned period of time,” noted the judge.
Mangota said the relationship of the parties cannot, by any stretch of the imagination, be regarded as that of employer and employee.
“It falls outside the defined pieces of legislation I made reference to, the case authority I was pleased to cite and the contents of the learned author’s work.
“There is, in short, no relationship at all between the parties.
“The respondents’ allegation that they have an employment contract with the applicant is misplaced,” said the judge.
Mangota said this assertion is misplaced in the sense that none of them, according to evidence filed of record, made any effort to reach out to the applicant with a request to the latter to place him on duty.
“They state, in clear and categorical terms, that they refused to be re-engaged on the applicant’s condition(s).
“They allege that, because the applicant purchased the mine as a going concern, it assumed all of its predecessor’s obligations. “What the respondents fail to appreciate is that the obligations which the applicant assumed from their predecessor remain unknown to them,” he said.
“What they also fail to appreciate is that, when the applicant placed the condition of re-engagement with them, it was creating new contracts with their co-workers and them which they had either to accept or reject. Their rejection of the applicant’s offer to them terminated their employment relationship with it.”
“The respondents are the authors of their own fate.
“They refused to work for the applicant for more than six consecutive years. “They, in the process, terminated the contract of employment which they claim to have had with the applicant. They did so by their conduct. They repudiated the contract if such was ever in existence. “It is, if anything, within the right of the applicant to apply as it did.
“The applicant proved its case on a preponderance of probabilities. The application is, accordingly, granted as prayed in the draft order,” he ruled. — STAFF WRITER
