Alice Madzinga v Weph Commercial Agencies (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/15/2020
HARARE, 23 FEBRUARY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGEMENT NO. LC/H/15/2020

HARARE, 23 FEBRUARY 2015                                    CASE NO. LC/H/849/15

AND 10 JANUARY 2020

In the matter between:-

ALICE MADZINGA								Appellant

And

WEPH COMMERCIAL AGENCIES (PVT) LTD			Respondent

Before Honourable Chivizhe, J;

For Appellant             Mrs C. Mahlangu (Legal Practitioner)

For Respondent         Mr P. Jonhera (Legal Practitioner)

CHIVIZHE ,J:

This is an appeal against an arbitral award per Honourable Chitsa, which award was made in favour of Respondent through a dismissal of Appellant’s claim of constructive dismissal for lack of merit. The Arbitrator instead found that the Appellant having personally resigned was entitled to be paid her terminal benefits. It is necessary to set out the brief background.

The Appellant was employed as Personal assistant to the Chief Executive Officer. She was later to occupy the position of Human Resources Officer. The Appellant was suspended on the 13th of June, 2014 on allegations of misconduct. There were several attempts to convene disciplinary hearing against the Appellant. The hearings were however postponed. The Appellant was then advised of her transfer to Norton on 9th of September 2014. The Appellant was aggrieved and immediately resigned from work. She then referred a claim to the Labour Officer for constructive dismissal. The parties having failed to conciliate the matter was referred to the Arbitrator. In his award dated 7th September   the Arbitrator dismissed Appellant claim for constructive dismissal. He found that she was however entitled to her termination benefits.

THE APPEAL

The Appellant was aggrieved and noted the present appeal on the following grounds of appeal;

GROUNDS OF APPEAL

The Arbitrator grossly erred and seriously misdirected herself on a point of law in  making a finding that the other principle of constructive dismissal include that one must have lodged a grievance before resigning.

Alternatively, the Arbitrator grossly erred and seriously misdirected herself on the facts, a misdirection that amounts to appoint of law in making a finding that Claimant had not raised any grievances before she resigned and that the issues she raised were supposed to have been raised with the Superiors before resigning when evidence on record clearly shows that those grievances were raised and was responded by a transfer by the Respondent.

The Arbitrator grossly erred and seriously misdirected herself factually, a misdirection that amounts to a point of law in making a finding that there was insufficient evidence adduced by the Claimant to substantiate the allegations of constructive dismissal when there is more than sufficient evidence on record to that effect.

The Arbitrator grossly erred and seriously misdirected herself factually, a misdirection that amounts to a point of law in making a finding that both parties contributed to the delays in the conclusion of the matter and more specifically that there were occasions when the Appellant also sought postponement of disciplinary hearings.

The Arbitrator also erred and misdirected herself at law in failing to deal with the other issue raised by the Appellant that is the refusal by the Respondent to give the Appellant determinations and minutes of the several hearings conducted against the Appellant.

The Arbitrator erred and seriously misdirected herself in making a finding that the Appellant suffered no prejudice as a result of the several suspensions and hearings simply because she was reinstated with full benefits and salaries which is not true and also because she was prejudiced as she was not reinstated back to her original position and duties.

The Arbitrator grossly erred and seriously misdirected herself actually, a misdirection that amounts to a point of law in making a finding that the procedural defects in the process were not intentional so as to prejudice or harass the Appellant as no such evidence was adduced on record. On record there is actually evidence to the contrary.

POINTS OF LIMINE

The Respondent, through its Notice of Response filed raised a point in limine, that on the basis of section 98(10) of the Labour Act [Cap 28:01], the appeal was improperly before the court as none of the grounds raised amounted to questions of law. The Respondent prayer was for the appeal to be dismissed on that basis. It is necessary to address this point first.

The court, after considering submissions by the parties and upon perusal of the record of proceedings, was satisfied that the point was merited in respect of some of the grounds of appeal. This was the case with grounds of appeal nos. 4, 5, 6. The court was satisfied that the rest of the grounds were however raising issues of law. Ground of appeal no. 1 for an example was raising the legal issue as to whether for constructive dismissal to apply on employee needs to have lodged a grievance before resigning. In other words was it a pre-requisite at law for constructive dismissal to exist. Ground no. 2 was alleging a gross misdirection on the facts as to amount to a misdirection on the law in that the Arbitrator was alleged to have arrived at a finding not supported by the evidence in the record. The Appellant was similar to ground no. 2. Ground no. 3 was attacking the award on the basis that the Arbitrator erred and misdirected himself by arriving at a finding of insufficient evidence to support claim of constructive dismissal which finding was said to be contrary to the evidence in the record.

On the basis of these grounds of appeal the Appellant prayer was for the award to be set aside and replaced with an award directing Appellant reinstatement to her original position without loss of salary and benefits from the date of unlawful dismissal. In the event that reinstatement was no longer tenable the Respondent was to pay Appellant damages for loss of employment which damages were to be agreed upon by the parties failing which either party could approach the tribunal for quantification.

APPLICATION FOR CONDONATION

On the date of the hearing the Respondent through Counsel, made an oral application for condonation for late filing of heads of argument. Mr P. Jonhera for Respondent, submitted that the court should grant the indulgence in view of the fact that the delay was very short i.e. six days. His explanation was also said to be reasonable. The error was entirely in the hands of the legal practitioner who had failed to properly diarise the date of filing. The Respondent also had a very strong case on the merits that the Arbitrator had properly found that the Appellant having personally resigned from employment she was not constructively dismissed.

Mrs Mahlangu, for the Appellant, argued that the application was not properly before the court. The Respondent was actually barred before the court in terms of rule 19(3) of the Labour Court Rules, Statutory Instrument 15 of 2006. It was her further submission that Respondent could only apply for condonation upon uplifting of the bar operating against it. The Respondent had been advised of the bar on 26h of November, 2015 that is two days after Appellant’s receipt of Respondent heads. Respondent had done nothing to rectify the anomaly. The bar was therefore still operational. The court was said to have two options available to it in terms of the Rules. The court was urged to proceed in terms of Rule 19(3) (b) by determining the matter on the merits without the Respondent’s input. Mrs Mahlagu referred to a judgement by Hove J in National Airways union vs Air Zimbabwe LC/H/67/2011. She further submitted that in any event no provision was made in the rules for an oral application for condonation as sought by the Respondent.

Mr Jonera, in reply insisted that the oral application was properly before the court. The court after considering the parties submissions and in the exercise of its discretion granted under the Rule 26 then, allowed the oral application for condonation. In so allowing the application the court took cognisance of the fact that the delay was very minimal i.e. six days, the explanation tendered was unreasonable. It was also the court’s view that in view of the issues raised the matter would best be determined on the merits rather than on the technical issues raised. It was after all a trite position at law that labour matters ought to be resolved on the merits rather than on technicalities. The court relied on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S)

MERITS

On the basis of the remaining grounds of appeal there are three issues for determination before this court;

Whether the Arbitrator erred and misdirected himself in finding that appellant needed to have filed a grievance before resignation in order for the claim of constructive dismissal to succeed.

The Appellant submitted that the Arbitrator in his award had made a finding that because the Appellant had not filed any grievance before her resignation therefore her claim of constructive dismissal could not be contained. The Respondent position was that the Arbitrator did not make such a finding. The Appellant had clearly taken the Arbitrator’s comments in his award out of context.

The Arbitrator in his award referred to section 12 B (3) (c) as setting out the law relating to constructive dismissal. The Arbitrator also set out the pre-requisites of constructive dismissal. He referred to the need for an employee to first resign and that there should be evidence that the resignation was a last resort for the employee. There should also be evidence of undue pressure having been exerted on the employee to force him/her to resign. The referred to a Zimbabwe case in Fonda vs Mutare Club HH – 40 -91. The Arbitrator did also refer to the requirement that one must have lodged a grievance before relying on a decision from outside this jurisdiction. He made the following salutary remarks;

“Let me also highlight that the other principle of constructive dismissal include that one must have lodged a grievance before resigning as was held in L.M Wulfsonhn Motors v Dispute Resolution C3entre 2008 ILJ 356 (LC) and Foschini v CCMA 2008 ILJ 1515 (LC). Let me also point out that the onus is upon the employee to prove allegations of constructive dismissal as held in Fourie v JL Booysens t/a Makelaars 1995 4 LCD 407 (IC).”

The Arbitrator in his award further addressed the law relating to constructive dismissal as found in section 12B (3). He came to the conclusion that the Appellant’s claim did not meet the pre-requisites of what is considered to be constructive dismissal. He found that the fact of Respondent convening several hearings, aborting them and convening de-novo hearings was not sufficient to justify a claim of constructive dismissal. The employer was allowed to convene de-novo hearings in order to address procedural irregularities. He made the further finding that the Appellant in any event had not suffered any prejudice as a result of these procedural irregularities as she was remunerated at each time. He also found that the Respondent action in convening disciplinary proceedings and then postponing on several occasions did not amount to creating of intolerable working conditions. Instead it reflected a lack of competence on Respondent part in convening of disciplinary processes. He reasoned as follows;

“In casu, the technicalities in the disciplinary proceedings are not suffice to justify the allegation of constructive dismissal as there was evidence to the fact that the Respondent attempted to rectify the unprocedural actions by reinstating the Claimant on full pay and benefits and starting he disciplinary proceedings afresh. De novo hearings are permissible at law as cases should not be decided and concluded on technicalities as was held in Dalny Mine v Banda 1999 (1) ZLR 220 (S) and Nyahuma v Barclays Bank Pvt Ltd SC 67/2005. Further to this, let me point out that the claimant did not suffer any prejudice as a result of the alleged irregularities as the Respondent made good in terms of her remuneration. In justifying my reasoning, I am also basing my argument to the case of Air Zimbabwe Pvt Ltd v Chiku Mnensa and Mavis Marweye SC 89/2004 where the court held that improper disciplinary proceedings should not be taken as a scapegoat of one’s misdeeds. It was also my finding that both parties contributed to the delays in the conclusion of the, matter as from the evidence adduce, there are occasions when the Claimant sought postponement of disciplinary hearings. Thus, the events leading to the reinstitution of disciplinary proceedings and postponements of the hearings cannot be classified as amounting to intolerable working conditions as the Respondent sought remedial action to rectify procedural defects and that the Claimant also contributed to some of the delays in the disciplinary process. However, in obiter, I have taken cogniscence of the fact that the Respondent’s conduct in executing disciplinary procedures leaves a lot to be desired as this created unnecessary anxiety on the part of the Claimant. It was my finding from evidence presented that all the procedural defects in the process were not intentional to prejudice or victimize the Claimant, but was a matter of lack technical expertise in handling disciplinary hearings on the part of the Respondent. The Respondent should seriously consider having a competent person to assist in handling disciplinary proceedings in order to avoid such insinuations of creating intolerable working conditions. Be that as it may, I however dismiss the allegation of disciplinary proceedings technicalities as the basis for the alleged constructive dismissal.”

The court’s finding is that the Arbitrator correctly set out the law relating to constructive dismissal as laid down in section 12 B(3)(a). That section provides as follows;

“an employee is declared to have been unfairly dismissed- (c) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee”

The Arbitrator however in assessing whether the prerequisite had been met in this case seemed to rely mostly on cases from outside the jurisdiction. The law relating to constructive dismissal in this jurisdiction however is that constructive dismissal takes place when an employer makes the continued employment or working circumstances of an employee so intolerable that the employee is compelled to resign.

In the case of Astra Holdings (Pvt) Limited vs Peggy Kahwa SC 97|04 Malaba J (as he then was) on page 3 of the cyclostyled judgement held that;

“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.  In Western Excavating v Sharp [1978] 1 ALL ER 713 LORD DENNING at 717 d - f said:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” (My underlining)”

The decision was also followed in Rainbow Tourism Group vs Richard Nkomo SC 47|15.

It is clear on the basis of these authorities that;

The employment relationship should have been terminated at the instance of the employee.

The onus is on employee to prove the employer conducted itself in a manner which was in breach and goes to the root of the contract.

The test applied by the court is an objective test.

The employer/employee must provide evidence to justify that the relationship had become so intolerable that he/she had no option save to resign.

The employer/e must make up his/her mind immediately and leave at once.

It follows that the Arbitrator clearly misdirected and erred when he reached the conclusion that the law on constructive dismissal requires that an employee is required to have lodged a grievance before resigning. It is clear in arriving at that conclusion he was relying on authorities from South Africa which are inapplicable in our jurisdiction.

WHETHER THE ARBITRATOR MISDIRECTED HIMSELF IN FINDING INSUFFICIENT EVIDENCE WAS LED BY APPELLANT TO FIND CONSTRUCTIVE DISMISSAL

The Appellant in casu alleged that the Respondent had created intolerable conditions which forced her to resign in that on 13th of June, 2014, she was placed on an unlawful suspension. She had, through her legal practitioner objected to the suspension. When the matter was referred for a hearing, she again raised irregularities in the process. The Appellant submission is she was not granted determinations on the irregularities raised. After several postponements the suspension was uplifted and she was reinstated. She was however immediately re-suspended. Several hearings were later undertaken at which she again raised objections on the basis of irregularities in the process. No determinations were handed down. Instead the Respondent directed hearings de novo at each turn. It was Appellant contention that she was suspended on at least three occasions, several hearings were convened and aborted. The Respondent had eventually advised her of her transfer to Norton which decision was meant to frustrate her. She had immediately resigned thereafter. It was on this basis she alleged constructive dismissal.

The Respondent position was that the Appellant had not discharged the onus on her to prove constructive dismissal. The Respondent contended the suspensions and re-suspensions, the aborted hearings of the 25th of June 2014, 3rd July 2014 did not contribute to intolerable conditions. The Appellant had not sought to pursue her other rights at each instance, for example, by challenging her suspension in terms of the code of conduct and the Labour Act [Cap 28:01]. In regards the 2nd hearing on 3rd July 2014 the Respondent had actually complied following the Appellant objection that the hearing was not in terms of law. Appellant was reinstated to her original post. The Respondent disputed Appellant contention that the reinstatement was on paper as she was denied access to her laptop. Respondent position was that the Appellant had again not pursued her other options in that instance which options were under the Code or the Labour Act [Cap 28:01]. The Respondent’s further contention was that the factual conspectus clearly indicated an employer who was intent on disciplining its employee. The fact that it had taken Appellant 4 months to resign showed that Respondent had not made conditions intolerable for Appellant otherwise she would have resigned immediately. On this basis the Respondent position was that the Appellant had waived her right to claim constructive dismissal. The Respondent contention was the Appellant had resigned either to avoid disciplinary hearing or to avoid transfer.

The court finds that on the basis of the factual matrix as laid by the Appellant before the Arbitrator, the Arbitrator clearly misdirected himself on the law. The Arbitrator upon being presented with facts that indicated that Appellant had been suspended three times on the same allegations, that she had raised procedural irregularities with the disciplinary process and no determinations had been handed down that she had been subjected to several disciplinary hearings that were aborted only for her to be re-suspended immediately thereafter the Arbitrator clearly erred in dismissing the claim. The Arbitrator in his award justified the Respondent actions on the basis of Respondent lack of expertise in handing disciplinary processes.

The conclusion reached by the Arbitrator was clearly wrong. The actions of Respondent were not actions of an employer intent on disciplining its employee. Whilst it is conceded an employer has the right to discipline an employee the employer has to also consider the rights of the employee to a fair process. The Arbitrator himself admitted to a flawed disciplinary process. He recommended that Respondent hire a competent person to assist in handling disciplinary processes. He also admitted ress actions caused anxiety to Appellant. The question that the Arbitrator ought to have asked himself is whether the circumstances were such that it made employment intolerable for Appellant. There is no doubt that the Respondent actions in this regard would be frustrating and sufficient to create an intolerable working environment. This is more so with regard to the fact that whilst Appellant was still waiting for disciplinary process to be finalized by the Respondent the Appellant was advised without notification of her pending transfer to Norton.

WHETHER THE APPELLANT TERMINATED HER EMPLOYMENT AS A RESULT OF RESPONDENT CONDUCT

There is no doubt that the factors as raised by the Appellant relating to the stop/start disciplinary process would cumulatively render any continuation of employment intolerable. The Respondent however did not stop there. Whilst the Appellant was still facing the disciplinary process the Appellant was without any notice advised of her transfer from Harare to Norton. The Respondent claimed employer prerogative to transfer an employee from one place to another. The Respondent relied on the decision In Gurava Vs Traffic Safety Council of Zimbabwe 2009(1) ZLR 58.

The Respondent however did not dispute that the Appellant had a right to be heard. That right has been established in many decisions in this jurisdiction including the decision in Gurava Vs Traffic Safety Council of Zimbabwe 2009(1) ZLR 58 referred by Respondent. The same decision was also referred in Rainbow Tourism Group vs Richard Nkomo SC 47/2015.

The following words by Cheda JA in Gurava case are pertinent and clearly applicable in this case;

“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown. Good cause in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimization of the employee and any disadvantage. The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant’s objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer wherever such services are required, unless the employment contract stipulates that he is to be employed and remain at a specific place only. See Ngema & Anor v Minister of Justice, Kwazulu & Anor 1992 (4) SA 349 (N).

While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied that, since the respondent did not compel the appellant to go on transfer before he was heard, but deliberated on the issue before re-affirming its previous decision, the requirement of the audi alteram partem rule was complied with.”

It is clear on the basis of Gurava case that the Appellant clearly had a right to be heard before the transfer was effected. That right was however not accorded to her. The facts also show that she had immediately resigned after being notified of the pending transfer. It is the court’s finding that the Appellant clearly discharged the onus on her to prove that Respondent’s conduct was such that it made her working conditions intolerable. The Arbitrator therefore clearly erred in the conclusion reached.

It is accordingly ordered as follows;

The appeal is allowed with costs.

The arbitral awarded handed down on 7th September 2015 be and is hereby set aside.

The Respondent be and is hereby directed to reinstate the Appellant to her original position without loss of salary and benefits with effect from date of termination of employment.

In the event of reinstatement being no longer tenable the Respondent shall pay damages in lieu of reinstatement the quantum of which is to be agreed by the parties failing which either party can approach this court for assessment of such damage.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners

Wintertons, respondent’s legal practitioners