Freight World (Pvt) Ltd v Claude Sachikonye

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/612/14
HELD AT HARARE 4TH AUGUST 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/612/14

HELD AT HARARE 4TH AUGUST 2014			CASE NO LC/H/645/14

& 26TH SEPTEMBER 2014

In the matter between:-

FREIGHT WORLD (PVT) LTD				Appellant

And

CLAUDE SACHIKONYE					Respondent

Before The Honourable E Makamure, Judge

For Appellant		Mr H Mukonoweshuro (Legal Practitioner)

For Respondent		Mr M Hungwe (Legal Practitioner)

MAKAMURE, J:

The respondent was on 25 July 2001 offered employment to work for the appellant as Accountant Senior Bookkeeper (97 of record).  Sometime in 2006 he was given a job as Accountant  (page 94) and he accepted the job and its attendant duties.  On 28 July 2010 he was appointed Finance Director effective from 25 July 2010.  He was Head of Finance in the  organisation and  his responsibilities “remained the same”.  He also became part of the Board of Directors.

With the passage of time things did not go well between the parties.  There is communication on record showing that the appellant charged the respondent with acts of misconduct and eventually dismissed the respondent following misconduct proceedings.  The matter  was subsequently referred for arbitration.  The arbitrator who determined this matter made a finding that the respondent was constructively dismissed by the appellant.  The working environment was so unfriendly that the respondent resigned.  At p 91 of the record the respondent wrote the appellant as follows :

“The above subject matter refers;

Following our meeting last week on Thursday 4 October 2012 and yesterday’s meeting 8 October 2012, and on a PURELY WITHOUT PREJUDICE BASIS, I do hereby request your very good office to consider mutual termination of contract of employment.

Please kindly be advised that I have reached this decision after a lot of consideration, one of which is my happiness.  The animosity treatment I have been receiving since the end of May 2012 misunderstanding has significantly contributed to me reaching this decision.

Now I am kindly asking your good office to consider a severage package as per our meeting deliberations yesterday in your office, in addition to the normal terminal benefits I am entitled to, which is reasonable to kick start my life on this new path I have decided to take, taking into account that I have served this organization for 11 years 2 months.”

The above letter is one of the factors which were placed before the arbitrator for consideration.  The learned Arbitrator made the following findings which appear to be not in dispute.

These are:

Both the claimant and the respondent did not dispute the fact that claimant was employed by the respondent initially as the Accountant and was later elevated to the position of Financial Director.

It is also an undisputed fact that upon his appointment to the position of Finance Director the respondent did not furnish the claimant with a new job description and hence the respondent in his submission referred the arbitrator to the job description of an Accountant.

It is the finding by the arbitrator that the claimant and the respondent’s Chairperson held a meeting prior to the claimant’s submissions of the requests for a mutual termination of contract of employment with the respondent

From the claimant submission and the respondent submission the arbitrator established that the claimant and the respondent failed to agree to a mutual termination of employment in writing.

The arbitrator also established that the claimant was paid terminal benefits in December 2012.

Both parties concurred that the respondent paid the terminal benefits to the claimant despite the fact that there was no written agreement to the  mutual termination of employment.

Consequently the respondent requested the claimant to report for duty but the claimant declined alleging that he was not able to come back to work under an environment where there was animosity.

Claimant’s submission that his vehicle was branded with the company logo was not disputed by the respondent.

It was also established that the cars of the other directors were not branded with the company logo was not disputed by the respondent.

Respondent submitted that the other directors held difficult contracts from the claimant’s.

Respondent did not present to the arbitrator a new contract of employment after promoting the claimant to the position of Finance Director.

According to the Labour Act [Chapter 28:01] Section 12 (2) the respondent had an obligation to furnish the claimant with particular of employee remuneration and particulars of the benefits, upon appointment to the position of the Finance Director.

It was therefore not unreasonable on the part of the employee to conclude that the car he was driving and the allowances he was getting formed part of his benefits and hence were contained in his contract of employment.

Respondent submitted that the claimant should not compare himself with other managers or directors since they had different contracts.

The respondent did not totally dispute the fact that claimant’s school fees benefits and cash allowance were withdrawn without any reasonable excuse.

Respondent argued that the school fees allowances, fuel allowances were not reduced in writing and were therefore privileges.

Respondent did not conclusively convince the arbitrator that the above were only privileges since there was no contract of employment signed by the claimant and the respondent with conditions of service contrary to what the claimant had submitted.

Accordingly the arbitrator concluded that the submission by the claimant that he was being paid benefits like fuel allowance, school fees allowances, cash allowances and cellphone allowances was not unreasonable in view of the fact that this was a senior position.

Other managers were also enjoying the same benefits.

Claimant’s submission that he was unfairly suspended from employment due to accusations that he was spreading rumors were not challenged by the respondent since the claimant successfully challenged the determination by the disciplinary committee where he had been issued with a  Final Written Warning.

The record shows that the working environment created for the

respondent was not  conducive for him to continue working.  Circumstances forced him to resign.   (See Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR 137 (H)).  Whatever processes followed appear to be a direct result of the ……………………. Which the respondent …………………….. at the hands of the appellant.

Having found that the respondent was constructively dismissed by the appellant. The only issue that remains is what he should be awarded to the respondent.  Two issues  however call for comment.  That is, (1) is the use of the word “package” by the arbitrator and (2) the appointment of the respondent to the Board.

My understanding of the use of the word “package is simply what should be awarded to the respondent.  The question of retrenchment or anything else does not arise.  Secondly the date on which the respondent was elevated to director level is also the date on which he was accepted as a member of the “Board”.  The promotion from Accountant/Head to director in my view called for a clear statement of duties and responsibilities. There was no contract showing what his duties and his benefits were.  This is common cause.  What one has to conclude is that whatever amounts and benefits that the respondent received during his tenure as a director were his entitlements.  Those entitlements could not be unilaterally withdrawn from him (See Air Zimbabwe (Pvt) Ltd v Zendera 2002 (1) ZLR 132).   The appointment of the respondent to the Board does not necessarily mean a change of salary.  However this should not be used as an excuse to deny the respondent what he was entitled to. Having made these comments, I found no misdirection on the determination by the arbitrator.

In the circumstances there is no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

H Mukonoweshuro & Partners, appellant’s legal practitioners

Hungwe & Partners, respondent’s legal practitioners