David M. Shoko v Makro Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/213/13
HELD AT HARARE ON 4 MARCH 2013
CASE NO.
JUDGMENT LC/H/213/13
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT LC/H/213/13

HELD AT HARARE ON 4 MARCH 2013			CASE NO. LC/H/07/12

In the matter between:

DAVID M. SHOKO				-		Appellant

And

MAKRO ZIMBABWE				-		Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				Ms A. Mapanzure (Legal Practitioner)

For Respondent				Mr I. Chagonda (Legal Practitioner)

NDEWERE E.F.

The Appellant was employed by the Respondent in 1995 as the Administrative Manager.  In 1999 he was appointed to the position of General Manager Bulawayo Makro Store.  In 2003, he was transferred to Harare as General Manager for Mukuwisi Store.

In October, 2008, the position of General Manager Zimbabwe became vacant.  The Appellant was appointed acting General Manager for Zimbabwe.  The Appellant occupied that position until 1 April, 2010 when a substantive General Manager Zimbabwe was appointed.  Following the appointment of the substantive General Manager Zimbabwe, the Appellant reverted to his substantive position as General Manager, Harare, for the Mukuwisi Store.  On 26 July, 2010, the appellant tendered his resignation.  In his resignation letter, the Appellant alleged constructive dismissal.  His letter stated that he was resigning from Makro with immediate effect in terms of Section 28:01 as amended.

The Respondent replied on 30 July, 2010 accepting the resignation but disputing the allegations of constructive dismissal.  The Appellant referred the dispute to the Ministry of Labour and after failing to reconcile the parties, the Labour officer referred the case to arbitration.  The issue for the Arbitrator to determine was whether or not the employee was constructively dismissed and if so, the appropriate remedy.  The Arbitrator dismissed the Appellant’s claim of constructive dismissal.  The Appellant has now appealed to this Court.

The Appellant’s Grounds of Appeal are as follows:

The Honourable Arbitrator’s conclusion that Appellant was not subjected to intolerable employment conditions is grossly inconsistent with the evidence placed before him to be irrational and a serious misdirection on law in relation to the issue placed before him.

The Honourable Arbitrator erred in law in holding that Appellant was not constructively dismissed.

The Appellant says the Arbitrator’s conclusion in dismissing the Appellant’s claim that he was subjected to intolerable employment conditions is grossly inconsistent with the evidence placed before him.  This court has looked at the evidence which was placed before the Arbitrator.  There is a letter of resignation with immediate effect, dated 26 July, 2010, alleging constructive dismissal which was denied.  There is a letter to the Principal Labour Officer, dated 3 August, giving the circumstances of the alleged constructive dismissal.

Paragraph (a) of the letter to the Labour Officer is about staff transfer.  The Appellant alleged that there was transfer of the Store Division Manager to Bulawayo without his consent.

There is an e-mail in the record dated 1 May, 2010 which refers to the above transfer.  That e-mail clearly shows that the General Manager Zimbabwe raised the issue with the General Manager Harare Store in discussion.  In the e-mail, the General Manager Zimbabwe accepts the transfer will be inconvenient to the Harare Store but as General M anager strategizing for the whole o f Zimbabwe, he felt the transfer was “critical at this point” to the operations of the Bulawayo Store.

The Appellant replied this e-mail saying “for your information I have no qualms in him moving…. I will respectfully grant you the permission to transfer him…”

So clearly, the Appellant consented to the transfer.  In the e-mail his complaint is about the transferee’s behavior to him; not about the principle of the transfer to Bulawayo.  General Manager Zimbabwe responded to the comments about the transferee’s behavior and reminded the Appellant that the responsibility to discipline the transferee was in his office.  So the evidence shows that although the Appellant is alleging that the Division Manager was transferred without his consent, he actually consented.

Paragraph (b) refers to a clothing Franchise brought to occupy the shop floor space allegedly without Appellant’s involvement, yet on page 52 of the record there is an e-mail where the Appellant is informed of the development; invited to prepare the agreement and asked to communicate “if there are any issues that need consideration,” so clearly, the Appellant was involved.

In Paragraph (c) of the letter to the principal labour officer, the Appellant alleged that the reporting structure of the Sales Team was changed without any consultation with him.  There is an e-mail dated 25 May, 2010 to the Appellant on that issue.  That e-mail clearly shows that the Appellant is still involved with “strategy” for the business.  He is invited to air “any issue” on this matter and in fact the new structure is not communicated to the affected persons until he confirms receipt of the e-mail.  This shows that the Appellant was being given a chance to raise issues if he thought the structure was not workable, before his subordinates were informed.  So clearly, his allegation that he was not involved is not true.

Paragraph (d) of his letter to labour is about a Zfn publication of Wednesday 21, April 2010.  The Appellant clearly misunderstood the publication.  The publication was referring to his resumption of his substantial duties as General Manager for the Store following his release from Acting as General Manager Zimbabwe.  The Appellant admitted during arbitration that if he had sought clarification on this article, the situation could have been different.  The Appellant also admitted that up to the time of the arbitration hearing his post was still vacant; meaning the article could not have meant that as of April, someone had already been appointed to replace him when his post was still vacant in 2011 after his resignation.

The second point Appellant raises as evidence of constructive dismissal is the fact that the company’s Directors in South Africa appointed a substantive General Manager for Makro Zimbabwe without the courtesy to consult or prepare him for the announcement to the team as he had been the Acting General Manager Zimbabwe for the past 16 months.  Clearly, the Appellant’s expectations were incorrect.  The position of General Manager was vacant.  The Appellant as another contender for the vacant post was obviously an interested party.  There was therefore no legal obligation on the Board of Directors to consult him, or prepare him as he calls it for the announcement.  It would not have been strategic for the Directors to do that given the sensitivity of such top jobs in business organizations.  So the Appellant’s submission that the Board’s omission to consult or prepare him was proof of constructive dismissal should be dismissed.  The Appellant also refers to the Directors refusal to hear him when he sought audience with him yet paragraph 3.5 of his Heads of Argument say he was advised to address the issue with the General Manager Zimbabwe.  So the Directors attended to his complaint and referred him to his immediate superior in line with corporate governance principles.

Section 12 B (3) (a) of the Labour Act [Chapter 28:01] provides that “an employee is deemed to be unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;”

During the appeal hearing, the Appellant conceded that he never sought audience with his immediate superior over his concerns before he resigned.  Given this concession, it cannot be argued that the employer “deliberately” made continued employment intolerable when the employer was not even aware that Appellant was aggrieved.  The case of MARSLAND VS NEW WAY MOTOR AND DIESEL ENGINEERING (2009) 30 ILJ 169 referred to by Appellant’s counsel is relevant to the issue.  The judgment provides as follows:

“The employee must show that the reason for termination of the contract must be that continued employment has become intolerable for the employee.  Again this must be objectively determined.  It follows that the subjective apprehension of an employee is not the final determinant of whether or not the employer’s conduct is intolerable.”  So, subjectively, the Appellant in this case thought the employer had made his continued employment intolerable but when the Arbitrator applied the objective test, he found that the employer had not deliberately made conditions of employment intolerable as envisaged by Section 12 B (3) (a).

The above analysis clearly shows that the Arbitrator’s decision was consistent with the evidence placed before him.  He did not misdirect himself in anyway and there is therefore no legal basis for this court to interfere with the Arbitrator’s decision.

The appeal is therefore dismissed for lack of merit.  Each party will pay its own costs.

KANTOR AND IMMERMAN LEGAL PRACTITIONERS – APPELLANT’S LEGAL PRACTITIONERS

ATHERSTONE AND COOK - RESPONDENT’S LEGAL PRACTITIONERS