Nokuxola Tshaka v Rainbow Tourism Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/217/16
HELD AT HARARE ON 17th NOVEMBER, 2015
CASE NO. LC/H/217/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/217/16

HELD AT HARARE ON 17th NOVEMBER, 2015     CASE NO. LC/H/47/14

AND 8TH APRIL, 2016

In the matter between:-

NOKUXOLA TSHAKA							    Appellant

And

RAINBOW TOURISM GROUP						    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr A. Marara (Legal Practitioner)

For Respondent	:	Ms N. P. Timba (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award.

The brief background of this case is that:-

Appellant was in Respondent’s employ as a Personal Assistant (PA) to the Chief Executive Officer

On the 13th December, 2012 Appellant was advised of her immediate transfer from the position of Personal Assistant to the position of Assistant Front Office Manager.

Taking over her position with effect from 3rd December, 2012 was Ms. V. Kamudyariwo.

Aggrieved by this transfer, Appellant raised a grievance which was ruled against her.

By a letter dated the 30th July, 2013, Appellant tendered her resignation with effect from 31st October, 2013.  She cited intolerable conditions perpetrated by Respondent as her reason for the resignation.

A complaint of unfair labour practice, concerning variation of contract, demotion and constructive dismissal was raised with the Labour Officer.

Eventually the matter was referred for arbitration, the award which is the subject of this appeal.

Section 12B (3) (a) of the Labour Act [Chapter 28:01] states the law on constructive dismissal.

It reads;

“(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;

…………………………………………………………………………..”

It is also an accepted position of the law that a transfer is the prerogative of the employer.   In the case of

GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE SC 28/2008

the Supreme Court had this to say;

“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer.

It is the employer who knows better where the services of an employee are required.  The Employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations, is not to be readily interfered with except for good cause shown.”

In determining whether there was constructive dismissal or not, the Arbitrator considered whether Appellant was not heard i.e. if the audi alteram partem rule was not flouted, whether Appellant’s conditions of service were varied and whether Appellant was demoted.

The Arbitrator analysed the evidence placed before him and concluded that Appellant raised a grievance and was indeed heard.  The transfer itself did not have any effect or bearing on the terms of Appellant’s conditions of service.  Her salary was not reduced, she had an office to work from, had work to do, though it was different from the usual work of a Personal Assistant.  She was taken through some training for the new job.

The transfer letter dated the 13th December, 2012 reads as follows:-

“Following discussions held with you, this letter serves to transfer you to

the position of …………………..

Effective date

Your appointment is with immediate effect.

Reporting Structure

During your tenure as Assistant Front Office Manager, you will report to the Rooms Division Manager for the hotel.  You will transfer in the same grade currently Hay grade 10

Conditions of service

Your current remuneration will remain the same.

Training and development program

You will be on a hotel operations development program over the next six months structured as follows:

…………………………………………………………”  (Underlining my own)

It is clear from the under lined portions of the letter that there was prior engagement with Appellant on the issue of transfer, that Appellant moved with her conditions of service intact.

With such evidence before him, and considering the principle that a transfer is the prerogative of the employer which should not be interfered with unless good cause is shown, it cannot be said that the Arbitrator’s findings were grossly unreasonable.

The law on constructive dismissal, as stated earlier is found in Section 12B (3) of the Act.  The case of

ASTRA HOLDINGS (PRIVATE) LIMITED

vs

PEGGY KAHWA SC 97/04

clarified the elements of constructive dismissal.

It stated that constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.

In the Kahwa case (supra) MALABA JA (as he then was) quoted with approval Lord Denning MR in the case of

WESTERN EXCAVATING   vs   SHARP (1978) (1) AER 713

at page 717 d-f

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.

The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice.

But the conduct must in either case be sufficiently serious to entitle him to leave at once.

Moreover, he must make up his mind soon after the conduct of which he complains for, if he 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.”

In casu, Appellant did not leave immediately, neither did she give notice of her intention to leave as a result of the transfer.  She however raised a grievance which she took through up to the Chief Executive Officer who, by a letter dated 18th July, 2013 confirmed the prior decisions disallowing the grievance.

It is noted from Appellant’s letter of the 14th May, 2013 that she only raised her grievance in May 2013.  In December all she did was take days off so as to adjust to the imposed arrangement (to use her words).

I am of the view that it was within her right to raise a grievance so as to have the issue resolved whilst she was still in employment.  The error she made however, was to raise the grievance four months later.  During these months she went through the training as required of her but only resigned in October after her grievance had been disallowed.

These facts distinguish her case from that of –

RAINBOW TOURISM GROUP   vs   ESTER KNIFE LC/H/197/15

relied upon by Appellant.  Ester Knife was advised of her transfer on the 10th April, 2013 two days later i.e. on the 12th April, 2013 she respondent to the letter of transfer raising issues.  On the same day (12th April, 2013) the Human Resources Director wrote back advising Knife that the transfer remained in effect as from the 15th April, 2013.  As a result Knife tendered her resignation with effect from 30th April, 2013.

The Arbitrator assessed the evidence before him and came to the conclusion that Appellant was not demoted, her conditions and entitlements were not affected in any manner she had the new job and was taken for training which was meant to equip her.  He found that Appellant resigned as a result of the dismissal of her grievance.

The Arbitrator correctly applied the law onto the facts and in my view his conclusions cannot be held to be grossly unreasonable, nor can it be said that he grossly misdirected himself on the law.

As stated earlier the employer had the prerogative to transfer Appellant to another department, Appellant’s conditions of service were not varied, there was no demotion, she did not immediately give notice neither did she raise her grievance immediately, she resigned after the grievance had been disallowed.

The holiday allowance which Appellant wants to rely on as proof that conditions were  varied was effected long after the transfer, i.e.  in  July, 2013, (7 months after the transfer).

There were no intolerable conditions perpetrated by the Respondent at all, to that end therefore this appeal cannot be allowed.

In the circumstances, it is ordered that it be and is hereby dismissed with costs.

Mutamangira and Associates – Appellant’s legal practitioners

Kantor and Immerman – Respondent’s legal practitioners