Ruvimbo Muvuti v Quetech Holdings (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/277/2014
HARARE, 3 FEBRUARY 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/277/2014

HARARE, 3 FEBRUARY 2014 &			  CASE NO LC/H/914/2013

23 MAY 2014

In the matter between:

RUVIMBO MUVUTI						APPELLANT

Versus

QUETECH HOLDINGS (PRIVATE) LIMITED			RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Appellant		B Furidzo (Legal Practitioner)

For the Respondent	E Jera  (Legal Practitioner)

KUDYA J:

This is an appeal against an arbitrator’s decision where he dismissed the appellant’s claim for constructive dismissal by the respondent company.

Facts of the case are that the appellant who was in the respondent’s employ as a key accounts manager resigned from employment after he had been transferred by the respondent to work at one of its subsidiaries. It was the appellant’s view that the transfer was a demotion and instead of reporting to the new station he resigned in protest to the transfer. After the resignation, he approached the arbitrator with a claim of constructive dismissal and payment of arrear salaries which he said he lost during the time when the respondent had put him on short time working arrangements during his tenure of office.

After listening to submissions and going through documents tendered by the parties at arbitration, the arbitrator concluded that the appellant had failed to prove his claims. Consequently he dismissed the claims for lack of evidence. Aggrieved by the arbitrator’s decision the appellant has now appealed to this court against that arbitral award.

The grounds of appeal are as follows:

1  a)	The arbitrator erred at law to find that the appellant had failed to prove that he was constructively dismissed.

b)	The arbitrator erred at law to find that the appellant did not call witnesses from Bevpack to prove the transfer yet there was documentary evidence to that effect hence making the issue a non-issue for constructive dismissal.

c)	The arbitrator erred at law to conclude that the appellant’s resignation was prompted by factors other than unbearable working conditions yet there was no evidence to that effect.

d)	The arbitrator erred at law to find that the appellant erred in resigning without exhausting domestic remedies.

e)	The arbitrator erred to conclude that the respondent had not created a hostile working environment.

2.	The arbitrator erred and misdirected self in finding that the appellant’s claim for arrear salary was not merited since contracts of employment were not part of the evidence yet the transfer letters which had the terms and conditions were adduced in evidence.

3.	The arbitrator erred to conclude that reinstatement was still an option yet the appellant had shown that the respondent had continuously created a hostile working environment.

4. a)	The arbitrator erred to find that there was no unilateral variation of a contract yet evidence showed that the appellant had successfully challenged his placement on short time and his payslips showed the continued deductions to his salary.

b)	The arbitrator erred to conclude that the appellant had not timeously asserted her rights as regards outstanding salary and benefits.

In response to the appeal the respondent maintained the following:

1.a)	The arbitrator did not err to conclude that there was no proof of constructive dismissal as envisaged by the Act.

b)	The arbitrator did not find that the appellant failed to call witnesses to show that he was transferred from Bevpack but rather that no evidence to show that transfer from “Bevpack to Mukundi was done in demeaning ways.

c)	There was no need for evidence to support the arbitrator’s finding. Onus remained on the appellant to show that he was constructively dismissed but he dismally failed to do so hence the arbitrator cannot be faulted.

d)	Finding by the arbitrator that the appellant erred not to exhaust internal remedies first is a factual finding which is not appealable at law. The appellant did not show that he tried to use internal grievance processes hence could not hold employer liable to actions which had not been brought to its attention in particular to the superiors’ attention.

e)	The appellant failed to show that a hostile working environment had been created by the respondent prior to his resignation hence he could not expect the arbitrator to find that he was constructively dismissed where no such evidence existed.

2.	It is not disputed that the appellant did not produce the varied contract and that he did not go for the collective management discussion when the agreement was implemented hence the appellant could not expect the arbitrator to find contrary to the evidence presented before him.

3.	It is unclear where this ground emanates from but there was no evidence and that continued employment was intolerable because of a hostile working environment.

4.	Short time placement was issue in arbitral proceedings aside from instant ones hence could not be a basis for subsequent proceedings.

5.	The appellant does not substantiate this appeal ground. Besides there was no need for the appellant to resign first before making a claim of arrear salaries if his claim was indeed genuine.

The law relating to appeals of this nature is clearly set out in the case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 475

It is imperative that before this court substitutes its discretion for that of the arbitrator it should be clear that the factual findings which have been argued to be points of law were arrived at in circumstances where it is clear that the arbitrator’s exercise of that discretion was grossly unreasonable that no other arbitrator faced with the same facts could arrive at such an outrageous decision. It is pertinent to note that at the outset all the five grounds presented by the appellant though elaborate in particular ground 1 if one looks at its subparagraphs they all essentially attack the arbitrator’s factual findings. There is no point of law falling in the first and second rung of what constitutes a point of law. See Sable Chemicals v Peter Easterbrook SC-18-10.

It therefore follows that the cumulative effect of the grounds is to argue that the arbitrator’s conclusions on the facts presented before him were so outrageous that they defiled all logic and common sense and would warrant this court’s interference.

Before discussing each of the grounds it is worth noting that the law as set out by the cases cited by the appellant is indeed settled. The case of Zimnat Life Assurance Ltd v George Dikunya SC-30-10 shows clearly that the failure by the appellant company to present evidence of how the employee’s status was and the legal implications of the transfer caused the court to draw adverse inferences from that failure thus accepting the employee’s argument. In the case of Thomas Meikles Stores v Doris Mwaita & Phiri SC-21-2007 where the employees left their jobs due to the humiliating act of being asked to take up posts inferior to what they previously held was held to be effectively a dismissal of the said employees entitling them to relief against such dismissal whether constructive or unfair.

The law in the above cases deserves no restatement but it need be decided whether the principles enunciated in the above case apply with equal force to the facts to the facts of the instant case thus entitling the appellant in the instant case to the relief which he is seeking. In particular two questions remain for consideration in the light of the quoted cases.

Firstly, in light of Dikinya case (supra) question is whether on the facts of instant case the respondent was duty bound to present before the arbitrator evidence on the appellant’s transfer and alleged outstanding payments failing which that could be held against it. Secondly in the light of Mwaita case (supra) question is whether facts in the appellant’s case can be said to have demonstrated that the nature and manner in which the transfer of the appellant was done was effectively a way of dismissing him as it would have been tantamount to humiliating him thus showing that the employer was dismissing him hence finding cogent ground for constructive or unfair dismissal in the circumstances. It is also worth noting that the legal principles set out in the above cases put to rest the argument about foreign South African authorities which the appellant had sought to rely on in its papers before it engaged counsel. It is against the background of the above authorities and legal pronouncements that the court will now address each of the grounds of appeal as shown below:

Ground 1 (a)

As regards this ground it is worth noting that the record of submissions at arbitration shows that the appellant indicated that the transfer which was the penultimate cause of the appellant’s resignation was just but one of the issues he was dissatisfied with. Further to that the respondent concedes that just after receipt of the quantification award where the appellant had successfully taken it before arbitration on his salary arrears issue the issue of transfer then came up. It is also difficult to reconcile the respondent’s argument that transfer was actuated by low business yet as the appellant asked how could it then go on to grant the appellant a waiver of leave if its performance was indeed so depressed. It would thus not be far fetched to accept the appellant’s argument that the transfer was more of a hit back at him for the earlier arbitral proceedings.

Even if the court were to assume it was not such a hit back, if the facts of instant case are placed in the context of the Mwaita (supra) case it is clear that the change of job title for the appellant and the duties notwithstanding a non-change in salary and benefits was indeed consistent with a move to constructively dismiss the appellant. There was nothing more other than what is on record needed by the arbitrator from the appellant to demonstrate that he was constructively dismissed. Given the facts which were presented in this matter the arbitrator’s finding is thus clearly unreasonable and cannot be sanctioned at law. This ground being with merit should this succeed.

Ground 1 (b)

Suffice to mention that this ground being a subsidiary of the main ground ruled on above it is clear from the record and documents filed of record that indeed the appellant moved from Bevpack to Quetech but indeed the main issue was not about that transfer. Instead it was about the move to Mukundi where documents on record show that he was now to occupy officer position down from his managerial position. As already mentioned, even if his benefits were to remain the same that was effectively a demotion and to that extent the respondent cannot be faulted for deciding to take flight from his job at that stage. Indeed thus the previous Bevpack-Quetech history was not really critical on the issues which were before the arbitration. This ground should therefore also succeed.

Ground 1 (c)

This ground is intricately linked with the main ground in 1 (a) and since it has been ruled that the finding in 1 (a) was a gross misdirection the instant ground should also consequently succeed.

Ground 1 (d)

On domestic remedies it is difficult to see how the appellant could have used these when as stated in 1 (a) the employer had effectively repudiated the contract hence resignation cannot be said to have been an extreme measure on the appellant’s part. He concluded from all the facts of his case that his employer’s conduct was calculated to frustrate him. He gave into the frustration and accordingly left. It was therefore a misdirection for the arbitrator to hold against the appellant the fact that he did not use the internal processes to register his disquiet. It is also worth noting that this was a case of parties who at an even earlier stage had dragged each other all the way to arbitration again to solve their issues so what internal mechanisms could come to the rescue of the situation. This ground also merited should succeed.

Ground 1(e)

This ground deserves no repetition as it is adequately covered in ground 1 (a) above. It should also succeed.

Ground 2

The issue of the outstanding salary and benefits is clear on record that it was subject of previous arbitral proceedings hence in the court’s view was irrelevant to the instant case. This ground thus lacking in merit should fail.

Ground 3

On the feasibility of reinstatement the premise from which the appellant approached the matter is that he left job because he felt he had been dismissed so how could he then ask to be reinstated where he had been effectively dismissed.

As indicated in 1 (a) it is clear that the respondent’s actions prompted the appellant to leave his job thus effectively dismissing him but however if the dismissal has been declared illegal by a court of law there would not be anything amiss in ordering a reinstatement or damages alternate. In the same light with 1 (a) the appellant left because he felt pushed out of the job and since that was illegal the court is at large to order his reinstatement  with option of damages. The ground being with merit should also succeed.

Ground 4

On unilateral variation of the contract ground 1 (a) concluded in the light of the Mwaita case (supra) that the charges notwithstanding static benefit showed indeed a change of the original contract hence conclusion that resignation of the appellant was activated by the respondents conduct. This ground should therefore also succeed.

Ground 4 (b)

On prescription of claim for salary and benefits it is clear from terms of reference to arbitration that that aspect was for the previous arbitration hence irrelevant to instant case. Whether the claim was lodged on time or out of time is of no consequence hence it was an irrelevant consideration. This ground should therefore also succeed.

In a nutshell all the appeal grounds except ground 2 being with merit should succeed and each party is to bear its own costs.

IT IS ORDERED THAT:

Appeal being with merit on all grounds except ground 2 it be and is hereby allowed.

The appellant is reinstated to his original position from his date of resignation without loss of salary or benefits. Alternatively he is to be paid damages in place of reinstatement in an amount to be agreed upon by the parties failing which each party may approach this court for quantification. The arbitrator’s decision is consequently set aside. Each party bears own costs.

Kanokanga & Partners, appellant’s legal practitioners

Moyo & Partners, respondent’s legal practitioners