Scanlink (Pvt) Ltd v Average Nzenze & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/495/2016
HARARE, 13 JUNE 2016 &
19 AUGUST 2016
CASE NO LC/H/110/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/495/2016

HARARE, 13 JUNE 2016 &				         CASE NO LC/H/110/2016

19 AUGUST 2016

In the matter between

SCANLINK (PVT) LTD						APPELLANT

Versus

AVERAGE NZENZE						1ST RESPONDENT

And

CAMELON MASEVA						2ND RESPONDENT

Before the Honourable Muchawa J

For the Appellant	T J Mafongoya (Legal Practitioner)

For the Respondent     K Chirenje  (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award.

The first and second respondent were employed by the appellant on contracts without limit of time as cashiers stationed in Bulawayo from 26 March 2006 and 7 July 2008, respectively. They operated from GV-L Service Station.

Sometime in July 2015, the appellant decided to pull out of GVL Service Station and entered into discussions with Zuva Petroleum. It was then agreed that the appellant would move out of GVL Service Station on 30 September 2015 and that Zuva Petroleum would take over four forecourt cashiers.

Following the agreement between the appellant and Zuva Petroleum, Zuva agreed to take on the forecourt cashiers but advised that the appellant needed to have cleared all outstanding dues as they would not be able to take on any past obligations.

The appellant then proceeded on 31 august 2015 to write to each respondent, the following letter:

“TERMINATION OF YOUR CONTRACT OF EMPLOYMENT

We write to inform you that as a result of developments beyond our control, we will stop operations at GVL Services Station on 30 September 2015 and handover the premises to its owner Zuva Petroleum (Private) Limited on 1 October 2015.

This course of action will naturally mean that your contract of employment with us will end on 30 September 2015.

We have however agreed with Zuva Petroleum that they will take you on as their employee when they take over the premises.

We will pay you cash in lieu of leave at the end of October 2015.

We wish to take this opportunity to thank you for the excellent service you rendered to us during the tenure of your employment.”

On 29 September 2015 the respondents wrote objecting to join Zuva Petroleum (Pvt) Ltd before receiving their terminal benefits from the appellant.

The record on page 42 shows that on 1 October 2015, the GVL Service Station site supervisor, one Godfrey Marange got confirmation on 1 October 2015 at around 10.00 a m that the appellant would continue to run GVL Service Station until 20 October 2015. He claims to have telephoned both the respondents to return back to work until 20 October but they did not turn up for work at all, claiming they were already in Harare.

The appellant proceeded to charge the respondents of misconduct in terms of the Motor Industry Collective Bargaining Agreement, Statutory Instrument 35 of 2011. They were charged of absence from work for a period of five or more working days without reasonable excuse. The first respondent had the additional charge of theft of cash amounting to $237-41.

Meanwhile on 5 October 2015 the respondents registered a complaint of alleged unlawful termination of employment, alleged underpayment of wages and alleged long service award.

Whilst at the conciliation meeting, the respondents were served with notifications for disciplinary hearings to be held on 19 October 2015. They are alleged to have refused to accept the notifications. They consequently did not turn up for the hearings. The respondents were found guilty as charged and dismissed from employment with effect from 2 October 2015.

The complaints by the respondents to the NEC Motor Industry remained unresolved following conciliation and the dispute was referred to arbitration. The arbitrator found that there had not been any unlawful termination of contract, but that the parties by their conduct had agreed to mutually terminate the employment contracts.

It was further ordered that the respondents be each paid two weeks’ salary for each year of service in terms of section 12C (2) of the Labour [Chapter 28:01] as amended plus cash in lieu of notice of two months.

The appellant is disgruntled with the award and has filed this appeal. The grounds of appeal are;

The arbitrator grossly misdirected at law by making a finding that the respondents contracts had been terminated on notice on 30 September 2015, despite clear uncontroverted evidence in the form of an affidavit by the respondent’s supervisor inviting and advising the respondents of extension of the appellant’s operations to 20 October 2015. Thus until 20 October 2015 the respondents remained employees of the appellant.

Consequently, by admittedly declining to report for work despite knowledge and invitation, the respondents committed a misconduct entitling the appellant to discipline the respondents as employees.

The arbitrator grossly misdirected at law by making a finding that the disciplinary hearings conducted against the respondents were a nullity, despite clear evidence that the respondents had been invited to the hearings as employees and had wilfully defaulted to attend.

By making a finding that the appellant could not conduct disciplinary hearings against the respondents after 30 September 2015, the arbitrator misdirected on the facts which constitute a misdirection at law in that evidence established that:

The respondents were aware of the extension of the appellant’s operations to 20 October 2015 before transferring to Zuva Petroleum.

The respondents admittedly were aware of the continued operations of the appellant to 20 October 2015 wherein they absented themselves, which conduct the appellant considered as misconduct going to the root of the contract.

The respondents remained the appellant’s employees who had wilfully repudiated their contracts of employment.

The arbitrator erred at law by making a finding that the appellant could not conduct disciplinary hearing after the respondent’s referral of matter to the National Employment Council for the Motor Industry.

The arbitrator misdirected at law by ordering payment of retrenchment packages to the respondents yet they had been properly dismissed for misconduct going to the root of the contract of employment. Consequently, as properly dismissed employees the respondents are not entitled to any retrenchment package and notice pay at all.

I believe two issues emerge for my determination from the grounds of appeal.

The first issue is whether or not the respondents remained employees of the appellant after 30 September 2015 and could be disciplined. Resolution of this issue will deal with appeal grounds 1, 2, 3 and 4.

The second issue which depends on how the above issue is resolved is whether or not the appellant could conduct disciplinary hearings after the respondents had referred the matter to the NEC for the Motor Industry.

Finally I have to decide on the respondent’s entitlements to retrenchment packages and cash in lieu of notice.

I deal with these issues in turn below.

Whether or not the respondents remained employees of the appellant after 30 September 2015 whom appellant could discipline

The appellant relies on the affidavit by the respondents’ supervisor to argue that though the appellant had initially advised that the employment between the parties would end on 30 September 2015, they were advised that the appellant had extended operations to 20 October 2015.

It is argued further that the respondents refused and failed to report for work and this amounted to misconduct warranting disciplinary action as the respondents had not yet transferred to Zuva Petroleum and so remained as the appellant’s employees.

The appellant contends that the arbitrator failed to consider relevant facts and this amounts to a misdirection at law.

The respondent argues that their contracts of employment with the appellant were terminated on notice on 30 September 2015 as per the letters received by them. They deny that the affidavit of their supervisor was before the arbitrator and claim never to have been served with this. It is argued that the letter of termination of contract of employment was never revoked, nor were they reinstated hence they ceased to be employees after 30 September 2015.

A close look at the letter of 31 August 2015 to each respondent, should resolve this issue. It is titled “termination of your contract of employment”. It then states unequivocally that “Your contract of employment with us will end on 30 September 2015.”

There is no revocation of this letter on record nor any other reinstating the respondents. The affidavit whose relevance is contested which the appellant relies on; in my opinion does not help the appellant’s case. In the affidavit the supervisor avers that he was only advised on 1 October 2015 at around 10.00 hours about the extension of operations to 20 October 2015. The telephone calls to the respondents were therefore done after this. By that time the contracts of employment had already been terminated on 30 September 2015.

The purported extension by telephone call being one after the termination of the contracts is null and void as the contracts had already terminated by operation of law. See Shumbayaonda v Ministry of Justice & Anor SC 14-2014.

In any event, the respondents refused to join Zuva Petroleum before receipt of terminal benefits and communicated this position to the appellant on 29 September 2015. They therefore accepted the termination of their contracts of employment and made their transfer to Zuva Petroleum conditional. They could not be forced to remain employees from 1 October 2015 and the respondents had to agree to the terms of the extended contracts. They did not.

I rely on the case of Rustenburg Town Council v Ministry of Labour & Ors 1942 TPD 220 and Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR to hold that once the appellant gave notice of termination of employment, it was final and could not be withdrawn except by consent. The principle is stated thus:

“The giving of notice is an unilateral act. It requires no acceptance thereof or concurrence therein by the party receiving notice nor is such party entitled to refuse to accept such notice and decline to act upon it. Therefore once notice is given it is final and cannot be withdrawn except obviously by consent.”

I find therefore that the respondents ceased to be the appellant’s employees on 30 September 2015 following the giving of notice of termination of employment. As a result, the respondent could not competently conduct disciplinary proceedings against former employees. Such disciplinary proceedings were therefore null and void.

My findings dispose of grounds of appeal 1, 2, 3 and 4 which I dismiss. It is not necessary to deal with ground of appeal 5.

Whether the respondents are entitled to retrenchment packages and cash in lieu of notice

The appellant argues that it was erroneous for the arbitrator to award retrenchment packages to the respondents yet they had been properly dismissed for misconduct going to the root of the employment. It is contended that in the circumstances they were not entitled to the retrenchment packages and notice pay.

Having already found for the respondents that their employment was terminated by way of notice given on 31 August 2015, there is no basis to uphold the appellant’s stance.

The arbitrator correctly applied the law as set out in section 12 (4b) as read together with section 12C of the Labour Act [Chapter 28:01] as amended.

Section 12 (4b) provides as follows:

“Where an employee is given notice of termination of contract in terms of subsection (4 a) and such employee is employed in terms of a contract without limitation of time, the provisions of section 12 C shall apply with regard to compensation for loss of employment.”

Section 12C (2) provides for a minimum retrenchment package of no less than one month’s salary or wages for every two years of service as an employee to be paid by the employer as compensation for loss of employment. This is payable whether one is retrenched or termination is by way of notice.

Accordingly the appeal be and is hereby dismissed for lack of merit.

Matsikidze & Mucheche, appellant’s legal practitioners