Edgar Rwodzi v Tarcon (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/290/16
HELD AT HARARE 26 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/290/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/290/16

HELD AT HARARE 26 FEBRUARY 2016			CASE NO LC/H/REV/87/15

& 13 MAY 2016

In the matter between:

EDGAR RWODZI				Applicant

And

TARCON (PVT) LTD				Respondent

Before The Honourable L Hove, Judge

For Applicant			Mr G Sithole (Legal Practitioner)

For Respondent		F Chimwamurombe (Legal Practitioner)

HOVE, J:

This is an application for review.

The applicant who was employed by the respondent as a general manager at its business site in Mozambique was on 21 July 2015 advised that the employer had decided to terminate his contract of employment on notice.

The letter read;

“We have decided to exercise our right in terms of your contract of employment with us and in terms of common law, to terminate your contract of employment with us on notice.  Our contract with you as read with section 12 (4) of the Labour Act requires us to give you three (3) months notice, which we hereby do.  Your notice shall commence with immediate effect.

Your monthly salary for three months notice shall be processed whilst you are at home…”

The appellant was aggrieved and initiated these review proceedings.

He submitted the back ground facts briefly as follows, he was stationed in Mozambique, as part of his remuneration, he was entitled to a six (6) day leave from site in Maozambique including two further days for travel from Mozambique to Zimbabwe at the respondent’s expense i.e. the respondent would be responsible for paying for the fuel expenses, temporary import permit for his vehicle, road access and carbon tax for each trip.  He was not receiving his salary since June 2013.  As a result of this non-payment, other labour disputes arose between the parties with the result that the appellant was charged for failing to return to work in Mozambique since the employer was advising that it had no money to pay his salaries and the cost of his trip back to Mozambique when he came on one of his 6 day leave away from site.

Applicant was charged for being absent from work for a period of 5 or more working days.  He was convicted and given a final written warning valid for 3 months.

He appealed against conviction and penalty and the matter was referred for arbitration.  He also raised the matter of non-payment of his salaries for conciliation and the matter is awaiting arbitration.

Whilst these matters are still pending, the respondent, on 15 July 2015 again wrote a

letter to him alleging that he had absented himself from work for more than 5 working days.  He was asked to submit a report by 20 July 2015.  He argues that the employer had initiated disciplinary proceedings when it invited him to submit a report by 20 July 2015, the employer chose to abandon the disciplinary proceedings and terminated his contract on notice.

It is argued that this was unlawful.  The contract of employment could only be terminated by one mode of termination since an employer cannot pursue two modes to terminate the same contract.  Once the respondent had chosen the disciplinary procedure, it was no longer open to it to terminate the applicant’s contract on notice.

The applicant also argues that the decision to dismiss him was actuated by malice as the application had taken the employer to “court” alleging unfair labour Practice in the non-payment of his salaries.  The respondent was failing to honour its contractual obligations.

It was submitted that malice and victimisation were valid grounds for review justifying the setting aside of an employer’s termination on notice.

Further it was submitted that the employer had charged the applicant with failing to report for work for 5 or more working days.  The applicant had appealed against the warning and the matter was still pending.

The respondent submitted in its heads of arguments initially at paragraph 5 page 1 that

“at the time when appellant’s contract of employment was terminated on notice there was no pending disciplinary proceedings against him except the claim for arrear salaries which is pending before the arbitrator.”

Then again in the same heads of argument on page 3 paragraph 13 the respondent states that

“Further the proceedings that are pending before the arbitrator have got nothing to do with the current proceedings because in that case the applicant is claiming arrear salaries and challenging a written warning which has since expired.”

So inspite of initially saying that there were no pending disciplinary proceedings pending at the time when appellant’s contract was terminated on notice, the respondent concedes in paragraph 13 that there were pending disciplinary proceedings in that the applicant was challenging the decision to give him a written warning.

These proceedings were thus pending on appeal.

The argument by the applicant that the letter of 15 July 2015 instituted proceedings is not tenable as the letter did not state in any way that it was instituting any proceedings.  I agree with the respondent that this letter did not initiate any disciplinary proceedings.

But there was a pending disciplinary dispute between the parties where in the applicant was challenging the decision to give him a warning for absenteeism.  These proceedings were pending.

Once there were pending disciplinary proceedings the employer could not choose to abandon those proceedings and terminate on notice.

The respondent in their arguments seem to believe that because the written warning expired 0n 6 February 2015 that means that there were no disciplinary proceedings pending between the parties see paragraphs 4, 5 and 6 of their response on page 28 of the record.

But this cannot be true the matter is still pending as an appeal against the warning is still pending.  The proceedings do not stop being pending because the warning period has expired but they stop being pending after a final decision has been pronounced and there is no appeal noted.  The respondent itself accepts that the dispute between it and the applicant in relation to his absenteeism was pending before an arbitrator by the time they wrote him another letter of 1st July 2015.  This matter was still the subject of an appeal and therefore pending.

The position in law has not been disputed that once an employer chooses one method to terminate a contract of employment.  It cannot abandon that procedure and dismiss on notice.  So where as in this case, an employer institutes disciplinary proceedings, it cannot chose to then abandon and terminate on notice.

See in this regard

Similo Mnkandla (Pvt) Ltd v Canpe Invsetments (Pvt) Ltd LC/H/111/2015

Mutare Board and Paper Mills (Pvt) Ltd v V Kodzanai 2000 (1) ZLR 641

Chirasasa & Others v Nhamo N O & Anor SC 135/02

Kwaramba v Baines Industries (Pvt) Ltd SC 39/2001.

I agree with the applicant’s submission that the respondent terminated the

applicant’s contract on notice soon after the decision in the Zuva Petroleum v Nyamande & Anor SC 43/15

As a device to expedite its getting rid of the applicant whom if had a pending and long outstanding disciplinary matter with regarding his alleged failure to report for duty and absence from duty.

The court cannot concern itself with the form of the letter dated 15 July 2015.  It must, in my view, because of the circumstances of this matter concern itself with the substance of the dispute between the parties which had not been finalised but continuing.

In the case of Kilbrun v Estate Kibrun 1931 AD 501 the court stated at p 507 that

“a court of law will not be deceived by the form of a transaction, it will rend aside the veil in which the transaction is wrapped and examine its, true nature and substance.”

The true nature of the legal issues between the parties in casu is that there was an on going disciplinary issue which the respondent was pursuing and the applicant challenged at appeal level.  Termination of the contract on notice is contrary to the unchallenged principle of law that an employer cannot abandon the disciplinary process it had initiated and dismiss on notice.

I therefore find that the application for review has merit.  The parties must continue with the disciplinary proceedings pending before the arbitrator to resolve their dispute.

In the circumstances,

The application for review is upheld with costs.

The decision to terminate applicant’s contract of employment on notice is held to be unfair and it be and is hereby set aside.

J T Mawire & Associates, applicant’s legal practitioners

Mberi Chimwamurombe Legal Practice, respondent’s legal practitioners