Borrowdale Critical Care (Private) Limited v Mufaro Bizabani and FV Marovanyika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/303/24
HARARE 10 JULY 2024
CASE NO LC/H/506/24
17 JULY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE  10 JULY 2024

17 JULY 2024

JUDGMENT NO LC/H/303/24 CASE NO LC/H/506/24

BORROWDALE CRITICAL CARE	APPELLANT (PRIVATE) LIMITED

MUFARO BIZABANI	1ST RESPONDENT

FV MAROVANYIKA	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-Mr G. Ndlovu, Attorney

For 1st Respondent	-Mr L. Madhuku and Mr T Zinto, Attorney

For 2nd Respondent	-No Appearance, Absentia

MUSARIRI, J:

On the 7TH May 2024 at Harare Arbitrator FV Marovanyika issued an award. She upheld 1st respondent’s (employee) claim of constructive dismissal from employment by appellant (employer). The employer then appealed to this Court in terms; of Section 98 (10) of the Labour Act Chapter 28:01 hereafter called the Act. The employee opposed the appeal. The grounds of appeal were four-fold as follows,

“1. The Arbitrator grossly erred at both fact and law in holding that the 1st Respondent

was constructively dismissed when the 1st Respondent in fact failed to discharge that burden of proof before the Tribunal.

The Arbitrator grossly misdirected herself on the law by failing to find that once there was prima facie evidence that the 1st Respondent had tendered two different employment contracts; the onus lay with him to produce the original contract to prove his claims.

The Arbitrator erred and misdirected herself at law by considering new evidence and/or information introduced through the 1st Respondent’s replication to which the Appellant could not respond to, notwithstanding the Appellant’s objection to its admission.

Having found that the 1st Respondent had been constructively dismissed the Arbitrator as any rate grossly erred at law by ignoring the legal requirement that damages must be proved and proceeding to award the same in circumstances where Appellant had placed no evidence before the Tribunal proving such damages.”

The 3rd ground complains about admission of evidence tendered through a replication. That is a matter of procedure which should be dealt with by review rather than the present appeal. The ground is accordingly discounted. The remaining grounds raise two 2 issues which shall be dealt with ad seriatim.

A Whether the Arbitrator properly assessed the evidence on constructive dismissal  particularly the onus of proof and documents tendered:

This Court considers that the Arbitrator set out the key finding as follows

“It is not in dispute that the respondent reduced the claimant’s salary arrears and allowances on the notion that the claimant’s contract is forged. The respondent submitted that the claimant was the custodian of his contract as he was in top management and upon request of his contract it was submitted of which the respondent denied it. This boggles the mind as the request was done and the claimant produced it as the custodian. The onus is on the respondent to produce a non-forged one of which none has been provided to the tribunal. The Labour Act …states that it is the obligation of the employer to inform the employee in writing of the duration, particulars and termination of employment contract which is seen on the produced contract with the signatories which are not disputed ie. Previous Directors. …

Looking at the conduct of the respondent of cutting salaries and allowances and re-interviews it makes the probability that the other allegations by the claimant are true. These are that the claimant’s duties were delegated to subordinates and the change of the lockset of his office which led him to being with no office which is buttressed by the unreplied emails by claimant to respondent seeking clarification on these issues of which no response came. With these acts from the respondent the employee had no reasonable alternative other than terminating the contract.

From the submissions there is substantive and convincing evidence in support of the claim of

constructive dismissal.”

In oral argument the employer argued that taking of the employee’s laptop office and re- interview did not singly or collectively amount to unreasonable or intolerable conditions. As for the cut in salaries and perks appellant argued that there was reasonable cause for the cut. It stated that 2 employment contracts were produced by the employee with differences that show the contracts were forged. On that basis the employer demanded the original contract. The employee maintained that the document he produced is a copy of the original. It was signed by the previous shareholders on behalf of the employer. The employer relied solely on its own

opinion of authenticity of the contract/s. They challenged authenticity of the signatures yet no handwriting expert opinion was tendered. In any event the previous shareholders admitted that the disputed signatures were theirs Further the employer did not challenge the actual figures of the salary perks. It is the employer who alleged that figures were forged therefore the employer bore the burden to prove the forgery. The employer’s sole proof was its ipse dixit. That was clearly inadequate.

The employer cited the dicta in the case of

Murray v Minister of Defence (2008) ZASCA 44

“There are many things an employer may fairly and reasonably do that may make an employee’s position intolerable. More is needed … the conduct must (in the formulation the courts have adopted) have lacked reasonable and proper cause.”

The case actually speaks against the employer in casu. The cut in salary and perks on the basis of doubtful claims of forgery was unreasonable and without cause.

It is therefore concluded that the arbitrator correctly found constructive dismissal in this case.

B Whether the Arbitrator correctly awarded damages in the absence of their evidence: The Arbitrator opined apropos damages as follows,

“In this matter parties are bound by what they agreed on their written contract. Part 7.3 of the parties’ contract states that if the employer wishes to terminate the contract before the tenure the employer shall be liable to pay the employee the whole remaining tenure in full. Thus the damages should be calculated as per contract of employment clause 7.3 i.e. payment of 51.5 months remaining part of the contract of employment”

The conclusion is problematic in light of the precedent set in,

Ambali v Bata 1999(1) ZLR 417(S) per McNally JA

“It is important that this court should make it clear, once and for all, that an employee who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit around and do nothing.  He must look for alternative employment. If he does not, his damages will be reduced.  He will be compensated only for the period between his wrongful dismissal  and the date when he could reasonably have expected to find alternative employment.”

This means that an employee rightly or wrongly dismissed must mitigate his damages by seeking alternative employment. Assessment of the mitigation and period he could reasonably expect alternative employment are matters for evidence. Thus proof of damages requires evidence as argued for the employer. The employee did not give a valid counter-argument.

CONCLUSION

The appeal partially succeeds to the extent that the damages awarded by the arbitrator were not properly proved. In the interests of justice, the matter shall be remitted back to the arbitrator for the proper assessment of damages.

Wherefore it is ordered that

The appeal be and is hereby partially granted;

The award dated 7th May 2024 made by Arbitrator FV Marovanyika is set aside except for the part that reads:

“In the result, I hold and award that:

The claim of constructive dismissal succeeds.”

The matter is remitted back to the Arbitrator for the proper assessment of damages after hearing evidence; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E