Mike Harris Toyota (Pvt) Ltd v Glenda Schaller

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/590/2016
HARARE, 26 JULY 2016
CASE
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/590/2016

HARARE, 26 JULY 2016					    CASE NO. LC/H/140/16

AND 23 SEPTEMBER 2016

In the matter between:-

MIKE HARRIS TOYOTA (PVT) LTD				Appellant

And

GLENDA SCHALLER						Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr B.K. Mataruka (Legal Practitioner)

For Respondent		Mr C.K. Kwiriwiri (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator Fidelis Matanhire that was handed down on 12 February 2016.  The award states as follows:

“In light of the above arguments and evidence placed before me, it is my observation and determination that the Claimant was constructively dismissed and thus should be

Reinstated without loss of salary and benefits or

If this is not possible, parties to negotiate for damages for loss of employment within twenty one (21) days from receipt of this award.

Thereafter, any party may approach this tribunal for quantification and registration of the award.”

The brief history of this matter is that;

The respondent was employed by appellant as an Accounts Manager from September 2012.  It is alleged that the conditions of service were unilaterally changed in May 2012 after the arrival of another Manager.

The respondent alleged that her entitlement to monthly bonuses for May and June was withheld and entitlement to profit sharing was withdrawn and yet duties were increased.

The respondent further states that she raised her grievances with management but nothing was done and she then approached the Ministry of Labour on the 5th July 2012.  After this it is alleged that the appellant withdrew the charges and requested the respondent to report back to work.

Respondent refused to return back to work, as she had already lodged her complaint with the Ministry of Labour.

Appellant then suspended the respondent and called her for a disciplinary hearing.

Respondent alleged that she was constructively dismissed as her conditions of service were unilaterally changed.  She then claimed 36 months salary as damages for loss of employment and all allowances including Medical Aid, fuel and profit share.

Appellant has claimed that respondent was constructively dismissed but that he was relieved of her duties after being absent from work for (5) five working days without any reasonable excuse.

The appellant further states that the contract of employment was clear that she was to be paid a profit share if the company had made a profit and the company had losses between 2011 and 2012.  Respondent was found guilty of withdrawing her services without reasonable cause.

The arbitrator found in respondent’s favour after the matter had been taken up for arbitration.

The appellant has now filed an appeal with this court and the grounds of appeal are as follows;

The Honourable Arbitrator erred on a point of law in failing to recognise that the appellant conduct amounted to  a repudiation of contract.

The Honourable Arbitrator erred and misdirected himself on a point of law in concluding that the appellant is obliged to pay the bonuses in circumstance where it has not made any profit operating from a loss making position and that such non-payment of bonuses for May and June constituted constructive dismissal and yet the respondent’s contract of employment is clear on this point.

The Arbitrator erred and misdirected himself on a point of fact such misdirection being so gross as to amount to a point of law in failing to take, into account the appellant’s financial position which led to it failing to pay the said bonuses.

The Arbitrator erred and misdirected himself on a point of law in evidence by holding that the respondent did not bother to explain itself for the non-payment of profit share when it had tendered its financial statements as evidence of incapacity.

The Arbitrator erred by awarding an award which respondent had not sought and yet she had prayed for a monetary settlement of 24 months salary.

The Arbitrator erred and misdirected himself in concluding that the lifting of suspension was a nullity when respondent accepted payment of the terminal benefits and her allocated vehicle upon the lifting of the suspension and the instruction that she returns to work.

The appellant therefore prayed that the Arbitral Award be set aside.

The respondent in response told the court that,

The appellant has approached the court with dirty hands.  An appeal on a point of law does not suspend the operation of an arbitral award.  An appellant should comply first.

The appeal is also out of time and should not be condoned.

The respondent on these grounds prayed for the dismissal of the appeal.

It is common cause that,

Respondent was charged and suspended pending disciplinary hearing.

Respondent’s benefits were withdrawn.

Respondent filed a report to the Ministry of Labour.

Appellant then withdrew the charges and informed respondent to report for duty.

Respondent did not report for duty and she was dismissed from work after she was found guilty of withdrawing her services without a reasonable excuse.

What is to be decided is whether;

Respondent’s conduct amounted to repudiation of contract.

Uplifting of the suspension was a nullity.

The Arbitrator erred by ordering re-instatement when the respondent had prayed for a monetary settlement in the form of 24 months salary and payment of allowances.

Whether Respondent’s conduct amounted to repudiation of contract

The respondent has submitted that she never repudiated the contract of employment because appellant just deposited money into her account without her consent.  Further the vehicle which is being referred to was already hers as she was buying it from appellant.

The appellant on the other hand submitted that respondent willingly withdrew her services.  Respondent was suspended on 4th July 2012 on allegations of divulging confidential company information to an ex-employee.  The e-mail alleged related to instructions that had been sent to the respondent by her Manager being an instruction for disciplinary processes against the ex-employee in question.  Respondent was suspended and the benefits including the company vehicle were withdrawn.  However through a letter dated 25 July 2012 (filed of record) the appellant withdrew the charges and respondent was advised to report for duty but she did not.  She was charged with absenteeism and dismissed and dismissed from work.  A termination package including the vehicle was prepared and she accepted it.

It is a trite principle of law that an employee has a duty to provide services to the employer.  In the case of Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 it was held that;

“The worker renders personal service.”

Furthermore Section 4 of SI 15/2006 states that;

“absence from work for a period of five and more working days without leave for no reasonable course” can lead to the dismissal of an employee.”

The appellant had a lawful right to dismiss the employee after her unjustified absence from work.  Her grievance with the Ministry of Labour did not act as a bar from her coming from work.  Her grievances could be sorted out whilst she was rendering her services.

In the case of Kandemiri v Director of District Development Fund and Anor HH-6-95 it was held that;

“Generally speaking, an employee who deserts his employer is not entitled to any equitable relief.  That is so because an employee should discharge his duties for the entire period of his employment.  When an employee fails to make herself available to perform his duties, he by such failure repudiates the contract of employment and the employer is free to accept such repudiation subject to an election to sue for any losses suffered.  A deserting employee cannot sue for wrongful dismissal because he had not been dismissed.  He has deserted.”

In this case therefore respondent deserted thereby repudiating the contract.

Whether Uplifting of the Suspension is a Nullity

When the suspension was lifted it is alleged that respondent accepted her benefits.  The reasons for the suspension and the complaint to the Ministry of Labour were different.  Respondent had been suspended for divulging confidential information.  The complaint that she raised with the Ministry of Labour is that she had entitled to monthly bonuses for May and June 2012 was unilaterally withheld and had entitled to profit sharing was withdrawn yet duties were increased.  Appellant indicated through its financial statements that it could not pay profit share because the company had suffered losses between 2011 and 2012.  Respondent’s contract of employment also stated that;

“You will be paid profit share if the company has made a profit.”

This clause in the contract has not been denied by the respondent.

Respondent was suspended for divulging confidential information.  Once that suspension was lifted she had to report for duty.  Gubbay JA in the case of Kandemiri supra also had this to say about suspension.

“Plainly the obligation of an employee who is placed under suspension to hold himself available to perform his duties if called upon to do so, is one which arises by operation of law.  It is of no consequence therefore that no provision in that regard is contained in the contract of service and it is not necessary for the employer at the time of suspension to so inform the employee.”

In view of this the respondent was obliged to report for duty upon being called to do so.  The arbitrator therefore erred by finding that the lifting of the suspension was a nullity which absolved the respondent of her legal obligation to report for duty.

Whether the Arbitrator erred by ordering Re-instatement when Respondent had prayed for settlement in the form of money.

The Arbitrator has the power to decide on what is fair and just in the circumstances.  However reinstatement of a person who had repudiated the contract was not fair in the circumstances.

When the parties appeared before me they indicated that they had agreed to abandon the two points in limine that had been raised namely that the case is

Resijudicator

Lis pendens

They indicated that they wanted to deal with the merits and their application was granted.

In view of the foregoing this court finds that the appeal has merits.

Accordingly it is ordered that;

The appeal be and is hereby allowed.

The arbitral award by Honourable Arbitrator F. Matanhire dated 12th February 2016 be and is hereby wholly set aside.

The respondent shall pay costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Kwiriwiri Law Chambers, respondent’s legal practitioners