Amon Nyamukunda v William Bain & Company Holdings

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/177/13
HELD AT HARARE 7th February, 2013
CASE NO LC/H/387/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/177/13

HELD AT HARARE 7th February, 2013	        CASE NO LC/H/387/11

In the matter between:-

AMON NYAMUKUNDA					Appellant

And

WILLIAM BAIN & COMPANY HOLDINGS		Respondent

Before Honourable G Mhuri, Senior President

For Appellant: Mr R.M. Mufuka (Legal Practitioner)

For Respondent: Mr B. Peresu (Legal Practitioner)

MHURI G.

The following factual background is common cause:-

that Appellant had been in Respondent’s employ for 16 years and at the time the issue giving rise to this appeal arose, he was based at Respondent’s Marondera branch.

that on or before the 16th May 2011 Appellant and Respondent’s General Manager Mr Madovi had some discussion which led to Appellant verbally tendering his resignation from Respondent’s employ

that on the 16th May 2011 Appellant reduced the verbal resignation into writing.

that on the same day the 16th May 2011 the General Manager  Mr Madovi went to Marondera where he held a meeting with all the branch employees. He announced that Appellant was no longer an employee of Respondent as he had resigned

that in the said meeting Mr Madovi dispossessed Appellant of the keys and handed them over to a Mr Muzuva

that in the said meeting Mr Madovi advised Appellant that he is free to come and collect any of his belongings still at the branch

that by a letter dated the 17th May 2011 addressed to Appellant, Mr Madovi advised Appellant that his resignation had been turned down.

Mr Madovi advised Appellant  that he was required to report for duty with immediate effect

that by another letter dated 18th May 2011 Mr Madovi reiterated that Appellant reports for duty as his resignation was null and void as it was on a without prejudice basis and as his requests in the resignation letter were not acceptable

that by a letter dated 23rd May 2011  Mr Madovi invited Appellant for a disciplinary hearing to be held on 27th May 2011 to answer charges of dishonesty for an act that happened on 15th April 2011

and

unsatisfactory work performance for acts that happened as from 2009

that on the 27th May 2011 Mr Madovi held the disciplinary proceedings and this was in Appellant’s absentia

that Appellant was found guilty and dismissed from Respondent’s employ

that Appellant’s appeal to the Appeals Committee was unsuccessful

It is against the Appeals Committee’s determination that Appellant noted an appeal to this Court.

In its Notice of Response to the appeal, dated 28th November 2011 Respondent raised the issue that the appeal does not raise a question of law, a point Respondent persisted with in its Heads of Argument and prayed that the appeal be dismissed on that reason.

This is an appeal in terms of Section 92 D of the Labour Act [CAP 28:01]. The Section reads;

“A person who is aggrieved by a determination made under an employment code, may within such time and in such manner as may be prescribed, appeal to the Labour Court.”

There is a distinction in the wording of the above Section and that of Section 98 (10).

Section 98(10) reads

“An appeal on a question of law shall lie to the Labour Court from any decision of an Arbitration .......”

Clearly appeals noted in terms of Section 98(10) must be on a point of law. This is not the case with appeals noted in terms of Section 92D where the words “on a question of law” were not included. If it was the intention of the Legislature that appeals in terms of Section 92D be on a question of law the Legislature would have worded that Section in the same manner it worded Section 98(10).

This appeal therefore cannot be dismissed on that reason.

In determining this appeal, I will deal first with the issue of resignation and thereafter depending on the findings, will proceed to deal with the other procedural issues raised by Appellant.

The main issues for determination are whether:-

Appellant resigned from Respondent’s employ?

Respondent could discipline an employee who had resigned?

I will deal first with the 2nd issue.

In terms of Clause 3.4 of Respondent’s Code, an employee can resign from employment. Clause 3.4 sub-clause 1 provides

“An employee who wishes to leave the Company must give at least three calendar month’s notice ... Notice must be given to the department manager not later than mid-day of the first working day of the month”.

The question to be answered is, does the contract of employment terminate upon giving notice or at the expiry of the notice. The answer in my view is at the expiry of the notice. Clause 3.4 sub clauses 3,5,6,7 and 8 provide for the day when certain claims are payable or cease and this is on the last working day.

Sub-clause 3 reads:

“In the event of the employer agreeing to waive a portion of the full notice period ..... the employee will only be paid up to the last working day”

Sub-clause 5 reads:

“Membership to the company’s Pension Fund or other similar scheme ceases on the last working day”.

Sub-clause 6 reads:

“Pay in lieu of accumulated leave days will be payable on the last day of serving notice”

Sub-clause 7 reads:

“Any cover that an employee may have under the Company (i.e. Cimas etc) ceases on the last working day”

In answer to this question Grogan at page 170 states;

“Although the giving of notice is a unilateral act that cannot be revoked without the consent of the other party, it would seem that the better view (or at least the Legislature’s intention was) to regard the end of notice period as the date of termination.

Only then do the parties’ obligations under the contract cease.”

(Dismissal Discrimination and Unfair Labour Practice Juta 2005)

It therefore follows in my view that an employee can be disciplined during the notice period as the contract only terminates on the last day of the notice period. The only situation in which this does not apply is where the employee indicates that his resignation takes effect immediately (resigns with immediate effect) and does not serve the requisite notice period.

See the case of

LEE GROUP OF COMPANIES

V

ANN CLARE ELDER

SC 6/05

in which Gwaunza J.A. found that Respondent had repudiated her contract of employment on the day she packed her belongings and left her office and therefore rendered it unnecessary for Appellant to dismiss her as she had resigned.

In casu, did Appellant resign and if he did, was it proper for Respondent to institute disciplinary proceedings against him.

For an answer, one needs to look at what transpired.

Filed of record is Appellant’s letter of resignation dated the 16th May 2011 addressed to the General Manager Mr Madovi. The letter reads:-

“As per instruction I hereby tender my resignation without prejudice.

May I request that you pay me my three months notice pay.

May I request that I get my full pension including employer’s contributions.

May I request that all my leave days be paid.

May I also ask you to sell me the company car I am using.

May you allow me to continue to live in the company house for the next 12 months.

May you give me first priority of taking over the business when you decide to close      it.

May I ask you to consider putting me on just retrenchment”

It was Appellant’s uncontroverted evidence which was corroborated by Muzuva before the Appeals Committee that on the 16th May 2011 the General Manager Mr Madovi came to the branch and called all branch employees into the Manager’s office for a meeting. The General Manager announced that Appellant was no longer an employee of the company and he had resigned of his own free will to pursue some personal business. The General Manager then took the keys from Appellant and handed them over to Mr Muzuva. The General Manager also told him that Appellant was free to come and collect any of his belongings still at the branch.

It was also Appellant’s averment which averment was not disputed that before the 16th May he was called to Harare Head Office and was presented with some options of resigning or face prosecution and he verbally opted to resign.

It boggles the mind why Respondent did not call Mr Madovi to come and give his side of the story to the Appeals Committee. Except for his two letters of the 17th and 18th of May 2011 refuting that Appellant was not forced into resigning and refusing to accept the resignation, Mr Madovi did not file a statement narrating his side of the story.

This leaves Appellant’s side of events unchallenged and is to be accepted as reflecting what transpired, namely that he resigned and his resignation was accepted by Respondent through the General Manager Mr Madovi.

I find that the General Manager’s letters of the 17th and 18th May are of no consequence. He was refusing to accept a resignation, an action he could not do. What he justifiably could do is to refuse to accept the requests made in the letter and nothing more.

It is a trite position of the law that;

“The giving of notice is an unilateral act; it requires no acceptance thereof or concurrence therein by the party receiving notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it .......”

RUSTENBURG TOWN COUNCIL

V

MINISTER OF LABOUR & ORS. 1942 TPD 220:

quoted with approval by Gwaunza J.A. in The case of

LEE GROUP OF COMPANIES supra

Having found that Appellant had resigned, was it proper for Respondent to proceed to institute disciplinary proceedings against him. The answer in my view is in the negative.

Firstly, it was not disputed that he was called to Harare and in the discussion he was told to choose resignation or prosecution. He verbally chose resignation and was told to put it in writing which he did by a letter dated the 16th May 2011. On the 16th May, it was not disputed that the General Manager went to Marondera and in a meeting addressed all staff members that Appellant was no longer an employee of Respondent’s as he had resigned. Keys were taken from Appellant and given to Muzuva, Appellant’s junior. Appellant was told to come and collect his belongings which were still at the branch.

I find that from the above, Appellant’s resignation though it was not stated in the letter was with immediate effect. It was not a resignation with notice. To that regard, I find that it was not necessary for Respondent to institute disciplinary proceedings as he had ceased to be its employee by the 16th May 2011. The comment by Gwaunza J.A. that one does not dismiss an employee who has tendered his resignation applies with equal force in this case.

To that end the proceedings instituted by Respondent after the 16th of May were not necessary and are therefore nullified.

Accordingly it is ordered that the appeal be and is hereby allowed with costs.

Respondent be and is hereby ordered to pay Appellant his terminal benefits on the basis that he had resigned with immediate effect.

Mufuka and Associates – Appellant’s Legal Practitioners

Honey and Blanckenberg – Respondent’s Legal Practitioners