Sean Oliphant v Brands Africa (Pvt) Limited

IN THE LABOUR COURT OF ZIMBABWE             JUDGMENTNO.LC/H/78/2013

HELD AT HARARE ON 12th March, 2012          CASE NO. LC/REV/ H/64/ 2012

In the matter between




SEAN OLIPHANT                                        –             Applicant

And

BRANDS AFRICA (Pvt) LIMITED                      –        Respondent



Before The Honourable L. Kudya, President

For Appellant      -      In person


For Respondent     -      Mr. R .Matsikidze (Legal Practitioner)




KUDYA, L.




      This is an application for review by the applicant. The basis for the

application is that the respondent company hastily concluded negotiations

pertaining to his exit from his job to the extent that he felt that he was coerced

into accepting the final settlement which saw him exiting the respondent

company .It is therefore his prayer that this court directs the respondent

company to renegotiate his exit package.




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    The brief facts of the case are as follows: Applicant was in the employ of the

respondent company as Sales Manager. From January 2011 the respondent

expressed     dissatisfaction   about    the   applicant’s   performance.    That

dissatisfaction culminated into various verbal and written communications

between the applicant



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and the respondent company. This took the form of written warnings and a

demotion of the applicant.

      During that discourse, the applicant queried the manner in which certain

decisions had been arrived at by the respondent company for example when he

was demoted before a proper hearing, that demotion had to be regularized by

having an appropriate hearing conducted before the penalty of demotion was

meted out.

       The respondent advised the applicant that he could not continue in its

employ as he was failing to meet the set targets for his job or at least comply

with the instructions to improve which the respondent company repeatedly

gave him over this period. An exit package whose terms applicant did not agree

with at first was offered to the applicant.

        The package was further revised upwards more than three times

culminating in the package which the applicant accepted as the final package.

He maintains that this final package was arrived at under duress and coercion

and thus has no force of effect. He therefore calls upon this court to interfere




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with the package by directing that the whole process of termination be started

afresh.

The applicant’s grounds of review are couched as follows:

   1. There was no real agreement in the termination of the applicant’

      employment contract neither was it consensual but that it was achieved

      through coercion and duress.

   2. The road to the purported mutual termination of applicant’s contract

      bears evidence of constructive dismissal as witnessed by the annexures

      filed of record.




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   3. The purported negotiations were hastily done within a very short period

      during which one would not be expected to make an independent

      decision.

   The respondent, on the other hand responded in the following manner

   1. Applicant’s contract was terminated by mutual consent. It was not

      through coercion or duress but applicant communicated freely with the

      respondent during the termination of the same. In any event, termination

      was not the only option but applicant was free to stay on the job but to

      meet the set targets. It also attached documents which pointed out that

      the termination was done by mutual consent. The four requests by the

      applicant to have the respondent revise its offer and the ultimate offer




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   which the applicant accepted were tendered as examples confirming

   mutual termination.

2. Applicant’s mutual termination was not fraught with constructive

   dismissal. The fact is that applicant was not performing to standard hence

   respondent had to take measures to curb the underperformance.

   Applicant’s promotion from the position of Sales Representative to that of

   Sales Manager was testimony to the effect that he had exceled then. All

   the measures that were taken by the respondent when the applicant

   began underperforming were all aimed at redressing his [poor

   performance and to rehabilitate him not to frustrate him into quitting his

   job.

3. Negotiations were done within a reasonable period from 18 May 2012 to

   applicant’s acceptance of the offer on 22 June 2012. During that period,

   the offer was revised four times hence it is misplaced for the applicant to

   argue that the negotiations were hastily done.

     The respondent therefore also prayed that the matter should not be

referred back to it for further negotiations as it had done that adequately

before. When the applicant signed the final offer he stated that he would not

have any further

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claims against the respondent thus confirming that he was happy with the

final settlement of the case

     When the matter came up for hearing before this court, applicant had

just received the respondent’s heads notwithstanding the fact that these had

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been properly served at his last known address. He conceded that he had not

advised the court of his new address but prayed that he be granted an

opportunity to react to the respondent’s heads.

         Since applicant was a self-actor and also in a bid to give effect to the

spirit of section 2 of the Labour Act Chapter 28: 01 which enjoins the court to

ensure that social justice prevails in labour cases, the court was persuaded

to bend the rules and afford the applicant the chance to respond to the

respondent’s heads of argument. It was finally agreed between the parties

and the court that the matter would be decided on the basis of all the papers

filed of record as they sufficiently addressed the issues at stake.

       Section 89 (d) of the Labour Act sets out the review powers of the labour

court in the following terms




           “The Labour court shall exercise the following functions:

           (d) exercise the same powers of review as would be exercisable by the High Court in
           respect of labour matters”




   Section 27 and 28 of the High Court Act Chapter 7:06 go on to set out the

circumstances under which this power can be exercised that is where there

are allegations of bias, malice, absence of jurisdiction etc as well as what the

court should do in the event that it is satisfied that indeed the issue at stake

is a

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reviewable issue for example powers to remit to the lower tribunal to correct

the anomaly complained of.

      Putting the above legal provisions into the context of the instant case it is

clear that the grounds contained in the applicant’ application have not

pleaded any of the above stated grounds. Given the fact that the court earlier

on indulged the applicant because he is a self- actor it was also compelled to

dispose of the grounds which he set out in like manner notwithstanding the

fact they did not raise reviewable grounds in the strict sense of the word.

          What was of utmost concern to the court was whether he had been

able to demonstrate that from the facts obtaining in his case there was a

case calling for a review of his termination of employment and the attendant

package.

  As regards the first two grounds, the law is as set out in the respondent’s

heads of argument. This court does not wish to repeat those heads verbatim.

Submissions by both parties show that when the problem of applicant’s

under performance raised its ugly head the respondent tried in the various

manners to have that rectified. Its measures included warnings to the

applicant and the demotion which was irregular at first but regularized later

on.

       All the efforts which were taken by the respondent cannot be argued to

have been a way of coercing the applicant to leave his job. Applicant does not

dispute that his ill performance was communicated to him at its onset and

that it remained unresolved all the way to when the mutual termination was

debated. The court therefore fails to understand where the argument about

coercion comes from.

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    The issue of constructive dismissal does not arise as there is nowhere in

the record where it has been demonstrated that respondent’s actions were

calculated to push the applicant out of his job. As has been stated on the

ground about

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coercion, it is clear that the efforts which were taken by the respondent were

all in a bid to address the problem of applicant’s underperformance.

    As regards the final ground respondent rightly observed that it does not

raise any ground for review. For completeness of record, in respect of that

ground it is important to note that the final offer which the applicant

received was punctuated by a series of revisions of the initial offer. It

therefore cannot be said that applicant did not have his day in the

negotiations neither can it be said that same was hastily done.

    Applicant’s endorsement to the final offer that he was receiving it and at

the same time relinquishing any claims that he could have against the

respondent clearly absolved the respondent. In the result, the court is

satisfied that   facts of this case show that, after applicant had accepted

respondent’s offer in full and final settlement of his job relationship with

it ,he seems to have on second thought felt that he got less than what he

had bargained for .

      His application appears seems to be a way to have a second bite of the

cherry on the negotiations which he concluded with the respondent.

Unfortunately the method which he has employed does not entitle him to

such relief. It is clear that he has failed to make out a good case for a review


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   of the agreement which he signed with the respondent .His termination was

   by mutual consent and he got what was due to him so it is imperative that

   both him and the respondent move on after the breakup of their previous

   contract. This court is satisfied that applicant has not made out a good case

   for review and the application should accordingly fail on all the grounds.




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   It is therefore ordered as follows:

   That the application for review being without merit be and is hereby

   dismissed with costs. .




L. KUDYA ____________________________

PRESIDENT




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Matsikidze and Mucheche– Respondent’s Legal Practitioners.




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