Tribac (Pvt) LTD V Farai Nyarucha & 3 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/305/2016
HARARE, 24 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/973/2015
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/305/2016

HARARE, 24 MARCH 2016 &			                  CASE NO LC/H/973/2015

13 MAY 2016

In the matter between

TRIBAC (PVT) LTD						APPELLANT

Versus

FARAI NYARUCHA						1ST RESPONDENT

And

TRINITY DZAPASI							2ND RESPONDENT

And

THOMAS ZACHARIA						3RD RESPONDENT

And

ELIA MPAKULA							4TH RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	W L Chirongoma (Legal Practitioner)

For the Respondents    Ms S Nyagura  (Legal Practitioner)

MUCHAWA J:

This is an appeal against a determination of the National Employment Council (NEC) for the Tobacco Industry Grievance and Disciplinary Committee.

The second and fourth respondents were employed on seasonal contracts whilst the first and third respondents were employed on permanent contracts, by the appellant.

The appellant, in a bid to deal with complaints of corruption within its premises, engaged the Zimbabwe Republic Police to work under cover. The four respondents were arrested on 3 June 2015 as a result of this operation, for fraud. In warned and cautioned statements duly signed before the police each respondent admitted to having committed the alleged fraudulent acts as follows:

The first respondent admitted having accepted a sum of $30-00 as an incentive so as to change bales labelled with grower number 121663 to a higher value.

The second respondent admitted having accepted the sum of $20-00 as an incentive to over value certain bales.

The third respondent admitted to having accepted payment of up to $100-00 as an incentive to change bales labelled with a grower number he had noted, to a higher value.

The fourth respondent admitted to having accepted payment of $20-00 as an incentive to change certain bales’ value to a higher one.

The appellant withdrew the charges against all four respondents on 3 June 2015. On 4 June 2015, each respondent had a meeting with the Human Resources Administrator, Mr Thomson in the presence of Mr Mavhunduke. They thereafter proceeded to write and submit resignation letters, which were duly accepted.

The respondents then sought the assistance of the Zimbabwe Tobacco Industrial Workers Union organising Secretary on 8 June 2015 and raised a complaint of unfair and unlawful termination of employment. They claimed they had been forced to resign instead of being made to appear before a disciplinary committee. The NEC in turn advised the appellant to convene a Works Council meeting to hear the matter in terms of Statutory Instrument 322 of 1996, the Tobacco Industry Code of Conduct.

A Works Council Meeting convened on 24 July 2015 concluded that the resignations had not been forced and that they stood. Thereafter the respondents noted an appeal with the NEC.

The NEC Grievance and Disciplinary Committee upheld the appeal, set aside the resignations and ordered reinstatement for all four respondents without loss of salary and benefits or alternatively, damages in lieu of reinstatement.

The grounds of appeal are:

The Grievance and Disciplinary Committee misdirected itself on the facts by making a finding that the respondents had been forced to resign upholding their appeal despite the fact that it was clear that the respondents had resigned out of their own volition after having committed various acts of misconduct rather than face disciplinary proceedings. The finding of the Grievance and Disciplinary Committee was grossly unreasonable such that any other reasonable person confronted with the same set of facts would not have reached such a determination.

The Grievance and Disciplinary Committee grossly misdirected itself on the facts such that any reasonable person confronted with the same set of facts would have reached a different conclusion in making a finding that the inconsistencies of the evidence led by the respondents was insignificant.

The Grievance and Disciplinary Committee erred at law in making a finding that withdrawal of criminal charges against the respondents “unconditionally” had any impact on labour relations issues.

The Grievance and Disciplinary Committee misdirected itself on the facts and consequently erred at law in making a finding that the respondents had been constructively dismissed despite the fact that it was clear that the respondents had voluntarily terminated their contracts of employment.

I will combine grounds 1 and 4 together in addressing them.

Grounds 1 and 4  -  Whether the respondents voluntarily resigned or were forced to resign

The respondents allege that they were forced to resign and that this therefore amounted to constructive dismissal as set out in section 12 B (3)(a) of the Labour Act [Chapter 28:01]. This section provides:

“(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 argued that the respondents were coerced into resigning through the setting up of the traps by the police in cohort with the appellant. They allege that they were threatened with the reinstitution of the criminal cases and had no option save to resign as they feared for their liberty and threatened beatings.

The appellant refers me to the record, particularly the Works Council meeting minutes, to show that at that stage, none of the respondents, in their evidence alleged any coercion nor made any complaint of such to the workers committee or the works council. They did not even allege then that on 3 June 2015, their confessions at the police were induced by any beatings or threats.

I was also referred to a statement on record from the appellant’s receptionist which was not disputed by the respondents. She states that on 4 June she was at the reception and that each respondent had a short meeting upstairs and returned to the reception area in which they remained for about twenty to thirty minutes during which time they talked, made telephone calls and were at liberty to come and go with access to other staff and telephones. It is further explained they each completed a document, called Mr Mavhunduke and handed these to him.

Where someone alleges that duress was exerted on them to enter into a contract or to do a certain act they have the onus to prove it. (See Garikai v Zimasco (Pvt) Ltd SC 46-96. They can only succeed if they satisfy the court that the duress was based on fear, which is a reasonable fear, caused by the threat of some considerable evil to the person concerned or his family, the fear must be of an imminent or inevitable evil. Further the threat or intimidation must be unlawful or contra bonos mores and must have caused damage. See Arend & Anor v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C).

In casu the respondents have not shown in the pleadings before me and the sets of minutes on record that they were under any pressure at the time of resignation.

The claim of reinstitution of criminal proceedings seems to have only come up before the NEC Grievance and Disciplinary Committee and not before this. Such criminal proceedings had been withdrawn the day before.

The resignations by the respondents are on record and are handwritten by each party. They talk of moving to greener pastures, personal issues/problems and do not point to any duress or coercion.

The respondents seek to make an issue of the fact that they were trapped and the money came from the appellant for the entrapment and not from the farmers. They however do not withdraw their admissions of guilt. Their conduct remains tainted however as it goes to the root of the employer – employee relationship. They say nothing of how their conduct differed from that of the rest of the employees who were not entrapped. They seem to fault the employer for putting in place measures to weed out corruption.

That argument, in my opinion does not help establish constructive dismissal which was only raised much later. I therefore find that the threat to the respondents or the duress complained of was self-induced. The respondents opted for resignation rather than facing disciplinary proceedings. The possibility of disciplinary proceedings is not an unlawful threat.

I find too that since resignation is an act of voluntary termination of the employment contract by an employee, the resignations by the respondents are lawful and they stand. This is so even where a person resigns in order to avoid disciplinary action. (See Madakureva v GMB 1998 (1) ZLR 1459 (S) and Standard Chartered Bank & Anor 2000 (2) ZLR 137 (H).

Grounds of appeal one and four therefore succeed.

Ground 2  - Whether the inconsistencies in the respondent’s evidence was insignificant

The appellant argues that the fact that the respondents’ version of events was inconsistent should not have been dismissed as insignificant by the NEC Grievance and Disciplinary Committee.

The respondents lightly dismiss this and allege that the important evidence was that the employer acted in an illegal and unwarranted way.

The NEC Grievance and Disciplinary Committee observes that there were inconsistencies in the submissions of the four respondents as to whether or not they discussed what to write in their resignation letters and whether they were given papers on which to write their resignation letters by Mr Thomson or Mr Mavhunduke and whether this was in the boardroom or at reception. Such inconsistencies are brushed away as being due to the trauma of 3 June 2015 from the events at the police station.

Due to the allegation that the respondents had been forced to resign, the trivialisation of such inconsistencies was improper. The NEC Grievance and Disciplinary Committee had to make findings of fact and in dealing with the evidence it had to balance the various probabilities and select the most plausible conclusion. (See Ebrahim v Pittman N.O 1995 ( 1) ZLR 176 (H) at p 184 E – 185 F.

Ground of appeal two therefore succeeds.

Ground 3 – Impact of withdrawal of criminal charges on the labour matters emerging

It is the appellant’s case that labour proceedings are distinct from criminal proceedings and that the fact that the criminal proceedings had been withdrawn should not have an effect on how the appellant proceeded in the civil labour matter.

The respondents persist with the claim that the resignations were forced. Due to my findings on grounds one and four of appeal, I believe this matter has been adequately addressed.

In any event, I believe the appellant misunderstood the finding of the NEC Grievance and Disciplinary Committee. They did not find that the criminal proceedings directly affected the labour matters arising. Their finding was:

“The respondent was supposed to instigate disciplinary proceedings in terms of the Code of Conduct if the company felt the appellants had a case to answer, rather than asking the appellants to opt for resignation after claiming to have withdrawn the matter unconditionally from the ZRP.”

I therefore find no merit in ground three of appeal.

On the basis of grounds 1, 2 and 4, the appeal succeeds with costs as follows:

The determination of the NEC Tobacco Industry Grievance and Disciplinary Committee is set aside and is substituted with the following:

“1.1.	The appellants (respondents in casu) voluntarily terminated their contracts of employment with the respondent.”

C Kuhuni Attorneys, appellant’s legal practitioners

Matsikidze & Mucheche, respondents ’legal practitioners