Lucy Shaw v Alliance Health (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/235/16
HELD AT HARARE 2 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/235/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/235/16

HELD AT HARARE 2 FEBRUARY 2016				CASE NO LC/H/554/15

& 13 MAY 2016

In the matter between:

LUCY SHAW						Appellant

And

ALLIANCE HEALTH (PVT) LTD				Respondent

Before The Honourable L Hove, Judge

For Appellant			R Zimudzi (Legal Practitioner)

For Respondent		Mr I Chingarande (Legal Practitioner)

HOVE, J:

The appellant is a former employee of the respondent.  She was employed in 2011 as a claims manager.  She resigned on 31 July 2014 giving the requisite 3 months notice on 7 August 2014 the respondent wrote back “accepting” the resignation and tendering cash in lieu of the 3 months notice.  All benefits were then withdrawn.

The appellant arguing that she had resigned due to the fact that the employer had made her continued employment unbearable.  The matter was argued before the arbitrator and it is against the arbitrator’s award that an appeal has been noted to this court.

Two grounds of appeal have been raised and these are

The honourable arbitrator erred in law and in fact by failing to consider that the appellant was unfairly dismissed as the respondent deliberately made continued employer intolerable for the appellant.

The honourable arbitrator erred at law and fact by failing to consider the fact that the appellant was entitled to school fees allowance and motor vehicle allowances until 31 October 2014 when her notice of termination was to expire.

These are the only two grounds of appeal raised and these are the only issues

that the court can properly consider in this appeal.

The appellant in her prayer raises the issue that she had been unfairly dismissed.  This, though not in itself raised as a ground of appeal, can still be considered under the first ground of appeal.

Again in the prayer, issues of medical aid payments, school fees and motor vehicle allowance and alleged unlawful deductions are raised.  These have not been properly raised but if the court were to find that the employer unlawfully terminated the contract, it would follow that she would be entitled to all her proven entitlements.  The issue of unlawful deductions will again be considered to be properly before the court in the interest of justice.

The appellant argues in her submissions that the employer had made her continued employment intolerable.  That the arbitrator had erred in failing to find that continued employment for the respondent had been made intolerable.  It was argued that in the case of Jaggers & Trador (Pvt) Ltd v Patricia Vadala Rohoe LC/H/102/09 It was held that constructive dismissal is inferred where resignation is as a result of material breach of contract.

It was argued that the appellant had been constructively dismissed as section 12 B (3) (a) of the Labour Act [Chapter 28:01] provides as follows

“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.”

The arbitrator considered the issues raised and the facts that are alleged to have made the continued employment intolerable and stated as follows;

“In order to qualify for the relief she has claimed, claimant is required to establish, on a balance of probabilities, that the conduct of respondent towards her was such that she could not reasonably be expected to continue in employment.”

The arbitrator further stated that on the facts placed before him, he was not convinced that the claimant had established a case for constructive dismissal.  He stated as follows;

“I could not find any evidence to substantiate this.  There is no proof that claimant was side lined in management decision making.  On the contrary, respondent was able to show that claimant participated in management meetings where her view points were considered.”

In short the arbitrator found from the facts nothing that could have made continued employment intolerable.

Now its quiet possible that if the appellant was allowed to state her case again before another tribunal, another tribunal may find differently from the arbitrator’s findings.  The law does not however allow appeals based on facts from arbitral decisions for be brought before the Labour Court and further an appellant court cannot in terms of law interfere with factual findings of a lower court unless it can be shown that there was gross irrationality in the manner the arbitrator considered the factual matters.

In casu, no allegations of gross unreasonableness have been made and thus this court has no basis to interfere with the factual conclusions by the arbitrator.

See in this regard the provisions of section 89 (10) of the Labour Act and again the cases of Sable Chemical Industries Ltd v Easterbrook 2010 (2) ZLR 342

Hana v NRZ 1996 (1) ZLR 664

Madoda v Tanganda Tea Co 1999 (1) ZLR 374

The court finds that the ground of appeal number 1 is only raising factual issues and the court siting as an appeal court cannot interfere with factual findings of a lower court or tribunal.

Tirivangana v University of Zimbabwe SC 21/13

Further even if I were to look into the facts, I would not have found that there was constructive dismissal in view of the fact that the appellant continued with the employment after the alleged acts by employer which made her continued employment intolerable.  In the case of Astra Holdings v Kahwa SC 97/2004 the court said

“if he (the employee) continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

The second ground is also inviting the court to consider factual issues when there is no allegation that there was gross unreasonableness in the manner that those facts were considered.  The ground of appeal alleges misdirection on the part of the arbitrator because he failed

“to consider the fact that appellant was entitled to school fees” and other allowances.

Whether or not one is entitled to such and such an allowance or school fees is a factual matter that can be brought to this court only if gross unreasonableness is alleged.

Coh-Coh Enterprises (Pvt|) Ltd v Mativenga & Another SC 30/01.

The arbitrator also needed to first consider the facts surrounding the deductions to be able to say that the employer was entitled or not entitled to effect those deductions. All issues brought cannot be raised by virtue of section 89 (10) of the Labour Act which permits only issues raising points of law to be raised before the court from appeals against arbitral awards.

Having found that no points of law are raised, the appeal is found to be improperly before the court and the following order is made;

The appeal is dismissed with no order as to costs.

Zimudzi & Associates, appellant’s legal practitioners

Matizanadzo & Warhurst, respondent’s legal practitioners