Donhe Construction Company v Luckmore Siyawadya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/674/14
HARARE ON 30 SEPTEMBER , 2014
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IN THE LABOUR COURT OF ZIMBABWE                       JUDGMENT NO. LC/H/674/14

HARARE ON 30th SEPTEMBER , 2014			             CASE NO. LC/H/859/13

AND 10th OCTOBER, 2014

In the matter between

DONHE CONSTRUCTION COMPANY			–	APPELLANT

And

LUCKMORE SIYAWADYA				-	RESPONDENT

Before The Honourable F.C. Maxwell, J

For Appellant  :	Miss S. Nyagura (Legal Practitioner)

For Respondent:	Ms L. Rufu  (Legal Practitioner)

MAXWELL J,

This is an appeal against an arbitral award in favour of the Respondent. Respondent was employed 	by the Appellant as a Site Quantity Surveyor on 17th February 2012. It is alleged the Respondent stopped going to work in March 2013. In June 2013 he reported for work and demanded his salary. Appellant contended that Respondent had repudiated his contract of employment by failing to report to work. On 6th June 2013 Respondent’s contract of employment was terminated.

On 1st July 2013 Respondent lodged a complaint of non-payment of wages and unfair dismissal. On 10th July 2013 a certificate of no settlement was issued and the matter was referred to arbitration. The Arbitrator ordered as follows:-

“(1)	The claimant be reinstated within  fourteen working days from the date of termination of his contract without loss of salary and benefits save for the period he was not coming to work, which period should be agreed to by both parties.

(2)	Should reinstatement no longer be possible, parties should agree on damages in lieu of reinstatement failing  which either party can revert back to the arbitrator for quantification.

(3) 	The claim for cash in lieu of leave days is dismissed.”

Aggrieved, Appellant noted an appeal on 23rd October 2013. The grounds of appeal are:

The Learned Arbitrator erred at law in making a finding that the Respondent was dismissed, when it is common cause that, the Respondent prior to the issuance letter (sic) of the purported termination by the Appellant, the Respondent has (sic) since not been coming to work and the law that is repudiation of the employment.

The Learned Arbitrator, assuming that he was correct on unfair dismissal, which he was not,  misdirected himself factually, a misdirection that amounts to a point of law in that after making a finding that the Respondent was no longer coming to work and the Respondent  was not aware of how many days he came, logically, it follows that the reinstatement  should have been without pay and benefits save from effective date of award.

In response Respondent narrated the background of the dispute. He alleged that during the period December 2012 to March 2013 Appellant stopped, failed and/or neglected to pay him his monthly salary and allowances. He alleges that he continued reporting for duty consistently up to the end of March 2013. After that period he reported for work inconsistently as he was struggling to raise money for bus fare due to non-payment of his salary for a period of four months by the Appellant.  According to him he cannot be held to have repudiated his contract of employment as the Appellant made continued employment intolerable by not paying him his salary, a case of clear constructive dismissal. He submits that his employment was terminated unlawfully after he had demanded his salary. Respondent further submitted that the grounds of appeal have no merit at all as the circumstances of the case clearly show that there was constructive dismissal. Respondent made reference to Section 12 B(3)(a) of the Labour Act [Cap 28:01].

At the hearing of the matter the parties argued about whether or not the doctrine of constructive dismissal was applicable in this matter. In my view this is immaterial as the basis of the award is clearly stated.

“Reference was made to Statutory Instrument 15 of 2006. This argument cannot help the Respondent. The fact that an offence is dismissible does not mean that an employer has a right to dismiss the employee without following the provisions of the Code. S.I. 15 of 2006 requires that a hearing has to be done. In this case, this could have allowed the claimant to state whether or not he has a reasonable explanation for his absence. Even if the claimant was dismissed for absenteeism, the dismissal was therefore unfair as it was not done in terms of a Code of Conduct.”

Considering the first ground of appeal, the question to be answered is whether or not Appellant can claim repudiation of contract by Respondent entitling it to cancel the contract without following termination procedures. In my view the circumstances of this case suggest otherwise. Appellant states that Respondent resurfaced in June 2013 demanding his salary. By that time the contract of employment had not been terminated. In such circumstances, in my view, Appellant was obliged to follow the termination procedures in the National Employment Code of Conduct SI 15/06.

In the case of Augustine M. Tirivangana v The University of Zimbabwe SC-21-13 the Appellant had not been reporting for duty for a period of ten months. Nevertheless the Supreme Court held that the onus is on the employer to show that the dismissal of the employee was effected in terms of a registered employment Code.

Appellant made reference to the cases of :

Thomas Meikles v Mwaita and Anor. 2007 (2) ZLR 185, and

Colcom Foods Limited v Christopher Kabasa SC-12-04

In my view these cases are distinguishable from the present case. In both cases the issue was the refusal to accept new/changed terms and conditions of employment proposed by the employer. The Supreme Court clarified that a contract of employment can be terminated on notice where there is no allegation of misdemeanor and where the employee was one to whom the provisions of a registered Code of Conduct applied. It further stated that where the disclosed or undisclosed reason for termination was misconduct on the part of the employee, the contract of employment has to be terminated in terms of the disciplinary procedure laid down in the Code of Conduct. In both cases cited above there were no allegations of misconduct leveled against the employees. In casu the termination letter mentioned absenteeism. The Arbitrator commented that reference was made to S.I. 15/06. Clearly there are allegations of misconduct against Respondent.

Absenteeism is an act of misconduct in terms of Section 4(e) of S.I. 15 of 2006. Section 6 of the same Statutory Instrument outlines the disciplinary procedure to be followed where an employer “has good case to believe that an employee has committed a misconduct mentioned in Section 4” of S.I. 15/06. That procedure was not followed in this case.

Appellant also made reference to the case of Zuva v Nyamande & Anor. LC/H/195/14 in which I held that termination on notice was not unlawful. That case is distinguishable in that there were no allegations of misconduct against the employees. Appellant  also made reference to the case of Mwanyisa v Minister of Finance and Others SC-39-01 arguing that there was no anomaly or procedural irregularity in the manner in which the Respondent’s contract of employment had been terminated. Again that case is distinguishable in that the Respondent was subject to the Public Service (Disciplinary) Regulations, 1992 which allowed the employer to discharge from service any member who has been absent from duty for a continuous period in excess of thirty days without having been granted leave. Mwanyisa was discharged after six months of absence without leave. For the above reasons I find no merit in the first ground of appeal.

The second ground of appeal faults the Arbitrator for ordering reinstatement from the date of termination of his contract of employment. Appellant submits that if warranted, the reinstatement should have been without pay and benefits save for the effective date of the award. Appellant justifies its position on the fact that Respondent was not aware of how many days he came to work and the Project at Midlands State University had been suspended which meant that there was no work at that site. Appellant further stated that the employer was facing financial constraints and Respondent could not be paid for the days he did not work. In my view the issue in question concerns the exercise of discretion by the Arbitrator. It is trite that an appeal court will not interfere with the exercise of discretion unless such exercise has been afflicted by a serious misdirection. The Supreme Court has held that it is not enough that the appellate court considers, if it had been in the position of the lower court, that it would have taken a different course. See Attorney General v Howman 1988 (2) ZLR 402, S v Nhumwa SC 40/88, Kujeke v Kujeke HH 112.02. It was not submitted that the order by the Arbitrator was so outrageous in its defiance of logic that no reasonable tribunal could have made it. There was no allegation of misdirection on the part of the Arbitrator. If anything what was submitted for Appellant can qualify for mitigating circumstances. I am not persuaded that there is any basis for interfering with the Arbitrator’s discretion. Accordingly the second ground of appeal also fails.

Consequently I find no merit in the appeal and therefore dismiss it with costs.

Matsikidze & Mucheche – Appellant’s legal practitioners

Dzimba, Jaravaza & Associates – Respondent’s legal practitioners