Felicia Macheke v Municipality of Kariba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/488/2014
HARARE, 16 JULY 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/488/2014

HARARE, 16 JULY 2014		                                  CASE NO. LC/H/688/13

AND 01 AUGUST 2014

In the matter between:-

FELICIA MACHEKE						Appellant

And

MUNICIPALITY OF KARIBA					Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. M.T. Mahlanga (ZUCWU)

For Respondent		Mr. C. W. Gumiro (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator G. Musaniwa which was issued on the 25th of June 2013.  The award states as follows;

“Accordingly, the decision of the Respondent in this instant case is upheld and the case is dismissed with each party meeting its own costs.”

The Appellant’s grounds of appeal are that the Arbitrator erred when he concluded that there was no constructive dismissal of the Appellant.  The Appellant prayed that the Award be substituted with the following;

“Appellant be hereby held to have been constructively dismissed and Respondent be ordered to

Pay punitive damages and all outstanding salary arrears including all benefits.

Should parties agree reinstate Appellant without loss of salary and benefits.”

The Respondent on the other hand told the court that the appellant had not raised any point of law as provided for in Section 98 (10) of the Labour Act.  The Court can only interfere with a finding of fact if the misdirection on factual findings is grossly above it so as to amount to a miscarriage of justice.  The Respondent further submitted that issues of constructive dismissal do not arise in this case as the appellant was dismissed after a disciplinary hearing.

The brief history of this matter is that on the 28th of March 2012 the Appellant applied to the central administration for permission to go to school and the request was granted on the 29th of March 2012.  On the 13th of April 2012 the director of Central administration withdrew the authority granted earlier on.

On the 2nd of May 2012 the Appellant was again informed through a letter confirming the withdrawal of the authority.  The Appellant proceeded to go on leave despite the withdrawal of the authority.

The Appellant was then suspended from employment and a disciplinary hearing was conducted on the 21st of May 2012.  She was found guilty of

Wilful disobedience to a lawful order.

Absence from work for a period of five or more working days without leave or reasonable cause in a year.

Appellant appealed to the Appeals committee but the appeal was dismissed on the 1st of November 2012.

The issue to be decided is whether Appellant was unlawfully dismissed or not.  The Appellant was not authorised to attend the training in Chinhoyi.  She however proceeded to attend the course despite the withdrawal of the authority.  The arbitrator was correct when he made the factual finding that there was no constructive dismissal on the Appellant.  She was dismissed after a disciplinary hearing.

Furthermore in the case of Astra Holdings Pvt Ltd v Peggy Kahwa SC 97/2000 MALABA JA described constructive dismissal as follows;

“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment”

The withdrawal of the authority to go for further training is not a breach that goes to the root of employment.  In fact there was no breach of the contract of employment.

In view of these circumstances this court finds that the Appeal lacks merit.

Accordingly it is ordered that

The appeal be and is hereby dismissed.

NGARAVA, MOYO & CHIKONO, Respondent’s legal practitioners