Joseph D Chikarati v Tauya Coach Services

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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/812/14

HELD AT HARARE 21ST SEPTEMBER 2014

CASE NO

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/812/14

HELD AT HARARE 21ST SEPTEMBER 2014 CASE NO LC/H/722/13

& 5TH DECEMBER 2014

In the matter between:-

JOSEPH D CHIKARATI Appellant

And

TAUYA COACH SERVICES Respondent

Before The Honourable L Hove, Judge

For Appellant T Madondo (Legal Practitioner)

For Respondent Mr I James (Human Resources Manager)

HOVE, J:

The appellant in this case was employed by the respondent as a fitter and turner in 1997.

The appellant alleges that the employer unilaterally sought to alter the employment contract which was one without limit of time to a fixed term contract. This was alleged to have been in 2009. It is further alleged that this decision by the employer made the appellant’s conditions of employment unbearable and in September 2011, the appellant was forced to resign from his employment. He alleges that the employer had constructively dismissed him in terms of section 12 B (3) (A) of the Labour Act {Chapter 28:01] (the act).

The dispute was referred to an arbitrator who dismissed the claim for constructive dismissal. In his award, the arbitrator reasoned as follows;

“There have not been any substantive indications or evidence to show that continued employment was made intolerable in any way…”

The respondent argued and submitted before the arbitrator that the

appellant had voluntarily resigned his job. The employer had indeed offered to move the appellant to a fixed term contract of employment from one that was without limit of time. The new contract was offered and had to be accepted within one month. The appellant had opted to remain on the initial contract without limit and never took up the offer within the month. The issue of constructive dismissal can therefore not be justified on a contract that was offered and rejected in 2009. The appellant had resigned in September 2011.

The arbitrator therefore found that there was no evidence to base a claim for constructive dismissal which had been placed before him.

The law provides in section 12 B (3) (a) as follows;

12 B (3) an employee is deemed to have been unfairly dismissed-

If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.

A litigant wishing to succeed in a claim of constructive dismissal must

therefore place before the arbitrator evidence to show that the employer made continued employment intolerable. In casu the arbitrator found that no such evidence had been placed before him. I have also perused the record and the heads of arguments filed on behalf of the appellant and find that apart from a bold averment that employment was made unbearable by the attempt to change the contract with no limit of the time into one of fixed duration there is no evidence to show what it is the employer is alleged to have done to make the appellant’s continued employment intolerable.

In the absence of such evidence, the arbitrator’s finding cannot be faulted. The appellant failed to prove constructive dismissal.

As regards the claim for the refusal by the employer to pay terminal benefits, it is by operation of law that terminal benefits must be terminated whether or not one is dismissed or has resigned. If the appellant had not signed the fixed term contract as is alleged by the employer and conceded by the appellant, the terminal benefits ought to have been paid on the basis of the contract of employment which governed the employment contract prior to the resignation.

In the result, the court dismisses the claim for constructive dismissal and orders that terminal benefits be paid on the basis of the contract of employment without limit of time that existed between the parties. Each party will bear its own costs.

Jarvis Palframan, respondent’s legal practitioners