Romeo Musiiwa v Brutamine Enterprises

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/92/25, CASE NO
LC/H/402 /24
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/92/25, CASE NO LC/H/402 /24

HELD AT HARARE, 28TH JUNE, 2024 AND 5th MARCH, 2025

In the matter between: -

ROMEO MUSIIWA:	APPELLANT

And

BRUTAMINE ENTERPRISES:	RESPONDENT

BEFORE THE HONOURABLE CHIVIZHE J

For Appellant: In Person

For Respondent : Mr. G. Dzivakwe with Ms. R.Maposa and Mr. K. Manyeruke

CHIVIZHE, J:

THE APPEAL

This is an appeal against the whole arbitral award handed down by Arbitrator, Ms B. Garudzo on the 21st of March 2024 dismissing Appellant’s entire claim. The Appellant raised five grounds of appeal couched as follows:

“Arbitrator erred in her findings that there was no evidence of the claim of tender commission fees although she acknowledged that unwritten contra is valid and binding. This finding is a misdirection of facts which amounts to a misdirection in law. The facts of the matter which the

Arbitrator failed to put into consideration is that the Appellant approached verbally the management on the issue of non-payment of tender commission fees specifically, Ms Cathrine Mazengura, and was told that she would revert after consulting. No response came. Appellant went further to put the claim in writing and made a follow up as an internal grievance before approaching external intervention, that is, Ministry of Labour. In his resignation letter dated 28 August 2023, the Appellant further reiterated his claim of unpaid tender commission stating that he wanted to solve the matter amicably and failure of which he would approach external intervention.

The Arbitrator erred in fact, which error amounts to misdirection of the facts in holding that there was no evidence of the claim of tender commission fees when in fact such evidence was fully presented before her. The Arbitrator’s reasoning is irrational given that the respondent who is supposed to be the custodian of employees’ employment records did not have such any written records pertaining to the Appellant employment status. This includes employment contract, pay slips or pay records, leave days etc in contravention of section 125 of the Labour Act, Chapter 28:01. The Arbitrator’s failing to appreciate and put her mind to the evidence presented to her in the form invoices and amounts paid to the respondent of tenders awarded to the respondent out of which the Appellant was paid his 10 % commission is grossly unreasonable.

The Arbitrator erred in finding that there was no constructive dismissal in that the conduct of the Respondent (employer) did not go to the root of the employment contract, whereas the facts of the matter is that the Appellant was instructed that the offices were to be closed with immediate effect and that he (the Appellant) was to work from home and that he would not be paid his monthly earnings, but only commission. The Respondent changed core aspects of the contract, that is, cutting Appellant’s salary and benefits. The withdrawal of Appellant’s monthly earnings is conduct which goes to the root of the employment contract as the working condition and environment abruptly changed without notice and consultation. In short, there was

constructive dismissal. As such, the Appellant’s decision was not voluntary but was caused by the Respondent’s behaviour.

The Arbitrator’s finding that there was no complaint raised by the Appellant prior to his resignation is misdirection of the facts which misdirection amounts to a misdirection in law. The dictates of section 12 b (3) are that an employee can” terminate an employment contract with or without notice because the employer deliberately made continued employment intolerable for the employee”. There was no time to raise the complaint or give notice as the Appellant was not given informed of the changes nor was he consulted regarding the same. There was no way he could have complained given the abrupt and sudden turn of events to the working conditions and environment. The Arbitrator erred in finding that there is no resignation on record, when in fact, the Appellant tendered his resignation letter dated 28 August 2023, and was signed by Herbert Paradza, (an official of the Respondent) on the same day as proof of receipt.

BACKGROUND OF APPEAL

The Appellant was employed by the Respondent from December 2016 to August 2023 as a Clerk. His duties included tender preparation, sales, invoicing and delivering documents. The parties' contract was verbal, and no terms were documented in writing. The Appellant was entitled to a salary and a tender commission fee of 10% of the net profit as per agreement.

In 2018, the Appellant submitted three tender proposals for dialectic testers, joint kits, and cables to the Respondent. The Appellant asserts that he received payment for only one of these tenders, and that he made several follow-up attempts regarding the two tenders for which he had not been paid. Subsequently, the Respondent changed his working conditions without any discussion. The Respondent cut his salary from US$700 to US$400. In addition, he was instructed to work from home and be compensated solely through direct commission. Eventually, the Appellant felt compelled to resign due to the intolerable working conditions imposed by the Respondent.

The Appellant referred a complaint before the Labour Officer regarding unlawful termination of contract, unpaid leave days, and unpaid tender commission fees on 15 September 2023. The issue was referred for conciliation, and both parties met with the Labour Officer Mr. Mapara on 2 October 2023. Despite a series of meetings with the Labour Officer, the parties were unable to resolve the dispute amicably. Subsequently, a Certificate of No Settlement was issued on 27 November 2023, and the matter was referred for arbitration.

The parties appeared before Arbitrator Ms. B. Garudzo. The issues for determination were as follows;

After considering the parties submissions and evidence the Arbitrator found that the Appellant worked with the Respondent for seven years and never raised any dissatisfaction relating to the unpaid tender commission fees. She further held that although the Appellant had claimed constructive dismissal, there was however no record of the Appellant’s resignation letter.Sheconcluded that therewas nobasis for theclaim ofconstructive dismissal. She consequently dismissed the claim. The Appellant, aggrieved by the Arbitrator's decision, has approached this Court and filed the present appeal.

PROCEEDINGS BEFORE THIS COURT

Before this Court the Appellant raised five grounds of appeal referred to supra which in turn raise two issues for determination. The issues for determination are:

Whether or not the appellant is entitled to payment of tender commission fees.

Whether or not the appellant was constructively dismissed.

RESPONDENT’S OPPOSING SUBMISSIONS

The Respondent argued that the Appellant never raised an issue of unpaid tender commission fees over the ten years he worked for the Respondent. It is

only after voluntarily leaving employment that he brought up this claim. The Respondent further argued that the Respondent never shared specific details about tenders or payments received from clients with the Appellant. It was the Respondent’s argument that contrary to the Appellant’s allegations, there was never an agreement or understanding that entitled him to 10% share from each successful tender obtained by the Respondent.

The Respondent went on to argue that the Appellant left employment at his own will, he at no stage raised a complaint with the Respondent about the intolerable working conditions, if they were any. The Respondent further argued that the Appellant was never instructed to work from home and that he would be paid on a commission basis only. The Respondent maintained that it paid the Appellant his full salary up until the time he voluntarily left employment without resigning.

The Respondent argued that the Arbitrator was correct in every material aspect, and that the Appellant was misleading the Court. The Respondent prayed that the appeal be dismissed in its entirety as it lacked merit.

THE LAW

Section 12 of the Labour Act [Chapter 28:01] (“the Labour Act”) outlines that the employment contract need not be in writing only. A verbal employment contract is permissible. The section further entails that the employment contract must envisage both the employee and employer’s particulars for clarity. It is not a requirement that the employment contract must state the employment duration unless it is casual work or seasonal work. Dube J (as she then was) in Delta Beverages (Pvt) Ltd vs. Pyvate Investments (Pvt) Ltd & Anor, HH 135-18 at p.4. stated as follows: -

“Generally, oral contracts are enforceable and do give rise to valid contractual relationships.”

Although oral contracts are legal, relying on a verbal contract can be risky due to potential difficulties in proving the exact terms of the agreement in case of disputes such as the present case. Oral contracts present some difficulty in ascertaining the actual terms.

ANALYSIS

Whether or not the appellant is entitled to payment of tender commission fees

The Appellant argued that he was entitled to 10% net profit for every tender, and that he was only paid for one out of three. Per Contra, the Respondent argued that there is nothing on record proving the existence of such tenders and that the Appellant was entitled to the same. Furthermore, from the Arbitrator’s findings there is no record that the Appellant during his 10-year employment raised any concern relating to the unpaid tender commission fees.

The Appellant was mandated to prove that such a tender commission contract existed. In Sibanda v Mwonzora & Ors HH 713-20 the court held that it is a cardinal principle of the law of procedure that he who alleges must prove. See also Mavrick Trading Private Limited v Double Services HH54/17, Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N. O and Another HH 57/15, ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC 13/17. There must be clear evidence to the claim. The Appellant has to prove by providing the court with the relevant evidence in the form of a paper trail to show that he received a commission in the past and had an expectation to receive more in future. Failure to provide such proof the Appellant’s claim remains a mere claim.

In the circumstances, no evidence having been tendered by the Appellant, before the Arbitrator or this court, to show that such a tender commission fee contract existed between him and the Respondent, the first and second grounds of appeal accordingly have no merit and ought to fail.

Whether or not appellant was constructively dismissed

Constructive dismissal is a form of unfair dismissal, which is provided in section

12B of the Labour Act [CHAP 28:01]. It is a form of unfair dismissal that the

Labour Act has deemed unlawful, entitling a victim of it to approach the proper labour tribunals to seek justice.

According to section 12 (b)(3) of the Labour Act Chap 28:01 :

Every employee has the right not to be unfairly dismissed.

An employee is unfairly dismissed—

if, subject to subsection the employer fails to show that he dismissed the employee in terms of an employment code; or

in the absence of an employment code, the employer shall comply with the model code made in terms of section

101(9). [Paragraph substituted by section 7of Act 7 of 2005]

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;

if, on termination of an employment contract of fixed duration, the employee—

had	a legitimate	expectation	of being re- engaged;

another person was engaged instead of the employee”.

The Labour Act therefore identifies constructive dismissal as being constituted where an employee terminates the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee by any act that renders the working relationship intolerable. In other words, constructive dismissal is constituted by any act of the employer which makes the continuation of the employment relationship unbearable for the employee to the extent that the employee is left with no option but to resign.

Constructive dismissal as a form of unfair dismissal stands unique from all other

forms of unfair dismissals that are provided for in section 12B of the Labour Act in that instead of the employer directly terminating the employment relationship, it is the employee who decides to terminate the relationship but still being allowed by the law to claim for damages on the basis that he or she has been dismissed unfairly.

For an employee to succeed in a claim for constructive dismissal, he or she has to prove three things which are as follows: -

That he or she brought the contract of employment to an end.

That the reason for bringing the contract to an end was that the employer had made the prospects of continued employment intolerable for him or her.

That he or she had no reasonable option other than terminating the contract.

Our courts have insisted that the above three issues must be proved by an employee to succeed in a claim on constructive dismissal. See Albert Juruvenge v Packrite (Pvt) Ltd LCH 618-13 at p. 9. As for requirement (a), our courts have dismissed claims on constructive dismissal where an employee, without having ended the contract of employment, merely approaches the courts complaining about the conduct of the employer. It should be stressed that termination of the contract in this context can either be with or without notice.

As for requirement (b), the conduct by the employer must be so serious so as to undermine or challenge the very existence of the parties' contract of employment. For instance, according to the case of Astra Holdings (Pvt) Ltd v Kahwa SC 97/04, MALABA JA (as he then was), 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”.

Acts mentioned in the above case of constructive dismissal may include acts such as significantly altering an employee's job responsibilities without a reasonable explanation, persistently and unjustly criticizing an employee, demoting an employee without a valid reason, withholding pay or benefits without justification, or creating a hostile work environment. These actions can lead an employee to feel compelled to resign due to intolerable working conditions.

Lastly, the employee must prove that terminating the employment relationship was the only option available to him or her. This means that where an employee has other remedies available to redress the conduct of the employer, such an employee must pursue such remedies before opting to make a claim on constructive dismissal. Thus, there should be a close connection between the conduct of the employer and the termination of the contract of employment by the employee. In the case of Barclays Bank of Zimbabwe v Norma Mapfanya and another SC 90-21 the court held at p. 12 that:

“Constructive dismissal is defined in s 12B (3) of the Act as discussed above. It is important that an employee terminates his or her employment as a result of deliberate conduct on the part of the employer which renders continued employment intolerable for the employee……. An employee cannot premise a claim for constructive dismissal unless the employment

contract has been terminated. This position is set out clearly in the Labour Act.”.

In casu, the Appellant terminated his contract of employment due to the intolerable conditions at the workplace. However, according to the above cases and provisions of the Labour Act, the Appellant cannot make a claim for constructive dismissal unless the employment contract has been terminated by his resignation. This position is set out clearly in the Labour Act. In the circumstances there being no evidence of a resignation letter placed before the Arbitrator only an allegation that it was submitted and signed, the Arbitrator was correct in the conclusion reached. The facts and evidence

placed before her did not prove /establish that the contract was terminated rather it showed that the Appellant had just stopped going to work. He may have actually repudiated the contract of employment. In this regard, the grounds of appeal are devoid of merit and must be dismissed.

DISPOSITION

Having looked at both parties’ arguments before this Court, it is considered that the Appellant’s appeal has no merit. The appeal therefore cannot succeed. It is accordingly ordered that:

The appeal be and is hereby dismissed with costs.