Flamelily Hospitality (Private) Limited v Inviolata Zinyimo & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/376/16
HELD AT HARARE 17 MAY 2016
CASE NO
JUDGMENT NO LC/H/376/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/376/16

HELD AT HARARE 17 MAY 2016				CASE NO LC/H/1112/15

& 10 JUNE 2016

FLAMELILY HOSPITALITY (PRIVATE ) LIMITED			Appellant

INVIOLATA ZINYIMO & ANOTHER					Respondents

Before The Honourable Honourable G Musariri, Judge

For Appellant			Mr B Mahuni, Attorney

For Respondent		Mr P Mabundu, Attorney

MUSARIRI, J:

On 6 November 2015 arbitrator J Chihlaba issued on arbitration award at Harare.  He ordered appellant to pay respondents their notice pay which the former had withheld.  Appellant then appealed to this Court against the award.  Respondents opposed the appeal.

The grounds of appeal were two-fold as follows,

“1. The arbitrator erred in law by holding that the respondents’ contracts had been terminated after the disciplinary hearing when the respondents terminated their contracts and refused to come back to work.  Alternatively, the arbitrator’s finding was a serious misdirection on the facts which amounted to a misdirection in law.

2. The arbitrator erred by holding that the appellant was obliged not to deduct notice pay in circumstances where the respondents terminated their contracts without giving notice to the employer.”

Filed of record is appellant’s letter to respondent dated 10 December 2014.  The subject is given as “Re:  Termination From Work.”  The contents show that appellant found respondents guilty of misconduct.  It proceeded to dismiss respondent from employment with effect from 17 November 2014 (the date of suspension).  Going by the contents of the letter it is the employer who terminated the contract of employment.

On these facts, the arbitrator reasoned thus

“I agree entirely with the claimants’ averment that in a case where the contract of employment is terminated through disciplinary process neither party is entitled to notice.  In the instant case it is the employer who terminated the contract of employment through dismissing the claimants, and for that there was no legal basis for withholding the claimants’ salaries as notice due to the employer.  The employees did not resign but were dismissed and thus entitled to any outstanding salaries and cash-in-lieu of leave days due to them as at 17 November 2014 being the date of dismissal.”

I agree entirely with the arbitrator.  Once an employee is terminated for misconduct, he is entitled to his terminal benefits up to the date of dismissal.  He is only required to give notice or forfeit notice pay where he (the employee) terminates the contract.  Appellant sought to argue that it was respondent who repudiated their contracts by failing to return to work.  If that was the position then appellant’s actions show that it did not accept the repudiation.  It insisted on laying charges of misconduct and conducting a hearing.  That shows that appellant, as any employer is entitled to, is not bound by the employee’s repudiation.  Appellant held respondents to the terms of the employment contract.  That entailed subjecting them to disciplinary hearing despite the repudiation.  Clearly appellant insisted on its right to terminate for misconduct which belies its argument based on repudiation.

In the circumstances I consider that the arbitration award is unassailable.  The appeal against it lacks merit and needs be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Appellant shall pay 50% of respondents’ costs of suit.

G MUSARIRI

J U D G E