Victor T. RunganI v Marange Mining Resources and Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/14/2014
HARARE ON 4TH SEPTEMBER, 2013
CASE NO. LC/H/400/12
In the matter between
JUDGMENT NO. LC/H/14/14
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO. LC/H/14/2014

HARARE ON 4TH SEPTEMBER, 2013	            CASE NO. LC/H/400/12

In the matter between

VICTOR T. RUNGANI					–	Applicant

And

MARANGE MINING RESOURCES AND ANOR	–	Respondent

Before The Honourable Chidziva, J

For Applicant   : L. Zinyengere (Legal Practitioner)

For Respondents : I. Ndudzo (Legal Practitioner)

CHIDZIVA, J.

This is an appeal against the arbitral award of Honourable M Dangwa which was handed down on the 30th day of April 2012. It states as follows:

“Having taken consideration of the submissions made by the parties the facts and the relevant law, I make the following award;

That it be and is hereby declared that the Respondent is found not guilty of unfair labour practice and that claimant’s allegation of unfair dismissal has no merit I award accordingly”.

The brief background of the matter is that the Appellant was employed by Canadile Miners (Pvt) Ltd on the 1st of November 2009. He was employed as a Chief Security Officer. His salary was ceased in October 2010. Eventually Appellant was asked to surrender the motor vehicle and the cellphone he was using as he was alleged that he was no longer working for Canadile as from 21st August 2010.

The Appellant’ grounds of appeal are that:

The Honourable Arbitrator erred on a point of law in making a finding that the Appellant had deserted his work when he was transferred by the Respondent.

The Arbitrator erred at law in finding that the Respondent was under no legal obligation to convene a hearing prior to dismissing the Appellant.

The Arbitrator erred at law in reaching the finding that the Appellant had resigned such that his decision is so unreasonable in its defiance of logic as to amount to an error of law.

The Arbitrator erred at law and fact in finding as common cause that the Appellant reported to a certain officer, which was not specified in the award, when the Respondent failed to produce the Appellant’s contract of employment or organogramme to prove that fact.

The Arbitrator erred in fact and at law in finding as common cause that the Appellant officer stopped reporting for duty on the 21st August 2010 when it is clear from the Appellant’s submission that he was reporting for duty at the Respondent’s Harare offices which fact was not denied

The Arbitrator grossly erred at law in finding as he did that the fact that the Appellant handed over the company vehicle to the Respondent is indicative of the fact that the Appellant had repudiated his contract. This finding is so unreasonable in defiance of logic as to amount to a finding of law.

The Honourable Arbitrator erred in fact and law in accepting as evidence an unsigned letter which was not even on the Respondent’s letter head as evidenced confirming that the Appellant was no longer Respondent’s employee.

The Appellant therefore prayed for the setting aside of the Arbitrator’s award and that he be reinstated to his employment or alternatively be paid damages in lieu of reinstatement.

The Respondent in response told the court that:

Appellant was transferred but he willfully deserted work by engaging in new employment

The Arbitrator rightly found that there was no legal obligation on the employer to conduct a disciplinary hearing in circumstances where someone has repudiated his employment contract

The Arbitrator’s decision was correct in that an employer is required by law to conduct a disciplinary hearing where an employee has shown that he no longer wants to be barred by the contract of employment.

The voluntary surrender of company assets was a clear sign that the Appellant knew that he had repudiated the contract of employment.

Appellant’s contract was lawfully terminated.

The respondent on these grounds told the court that the appeal lacked merit and that it should be dismissed with costs.

It is common cause that:

Appellant was employed by the Respondent as a security officer

On the 21st of August 2010 he moved to ZTDC

In October 2010 Canadele (Pvt) Ltd ceased his salary

In November 2010 he surrendered the vehicle and cellphone that he had been given by Canadele. What is to be decided is whether the Appellant repudiated his contract as alleged. If he repudiated it was the Respondent obliged to hold a disciplinary hearing to dismiss him from employment. The court will also finally determine whether the Arbitrator erred by finding that the dismissal was lawful.

The Appellant in his heads of argument told the court that he did not repudiate his contract of employment. He told the court that he transferred from the Mine to the respondent’s headquarters in Mt Hampden. He said that ZDTC was operating from the same premises with Canadile Pvt ltd. The Chief Executive Officer Mr Obed Dube told the court in his affidavit that Canadile Pvt Ltd was not part and parcel of Appellant’s movement from Marange. He also told the court that from the 21st of August 2010 the Appellant ceased reporting for duty at Marange as he had moved to ZDTC. It was the CEO’s evidence that he would see appellant attending to duty and performing services on behalf of ZDTC. Even when ZDTC and Marange were operating from the same premises Appellant would confine himself to ZTDC premises. When Marange moved to Avondale Appellant remained with all other ZDTC employees. Appellant only turned back to Marange around January 2011 when ZTDC started experiencing problems. In the Supreme Court case of TEL-ONE (Pvt)Ltd v ZULU S110/04 it was held that:

“By taking up the first job, the respondent repudiated his contract of employment with the Appellant on that day. The repudiation terminated the contract of employment between the Appellant and the Respondent.”

The Appellant’s behavior clearly showed that he had assumed another job, Furthermore had he not taken up another job he had no reason to surrender the motor vehicle and the cellphone if he was still employed by Marange.

In the case of Kandembiro v Director of DDF and Anor HH 6-98 it was held that where an employee fails to report for duty it can be inferred that he has repudiated the contract of employment CHATIKOBO J had this to say:

“It is my view a misnomer to refer to the termination of the Plaintiff’s employment as a dismissal. The plaintiff deserted. Generally speaking an employee who deserts his employer is not entitled to any equitable relief Willers’ Principles of South Africa Law” 8th edition page 639. That is so because an employee should discharge his duties for the entire period of his employment. Christie Business Law in Zimbabwe  page 316 when an employee fails to make himself available to perform his duties he by such failure repudiates the contract of employment and the employer is free to accept such repudiation subject to an election to sue for any losses suffered. Christie (supra) at page 317. A deserting employee cannot sue for wrongful dismissal because he has not been dismissed. He has deserted.”

The facts of the matter clearly show that the Appellant deserted the employer. He was not dismissed. If there is anything to recover it is the respondent who is to recover salaries from the Appellant because from 4 August 2010 to October 2010 he was earning monies he had not worked for.

The Supreme Court case of Girfac v Mudzingwa 1999 (1) ZLR 247 also corroborated this principle when it stated that:

“The Respondent had not been suspended and so he had no right to absent himself from work. He did so willfully. The offer made after 17 days came too late. The Respondent repudiated the contract of employment. And his repudiation was accepted by the Appellant in the letter of 27 October 1995……….”

The Appellant willfully left Canadile (Pvt) Ltd. He has not produced any proof that he was transferred to ZDTC and if he was transferred under what conditions. The Appellant produced the contract and the Respondent accepted it by asking the Appellant to return the vehicle and the cellphone. Where the employer fails to pay employees salaries the employee is still obliged to stand by the contract of employment. This was corroborated in the case of Zimbabwe Sun Hotels (Pvt) Ltd v Lean 1988(1) ZLR SC  when it was stated that:

“A breach by the employer of the obligation to pay the employee’s wages does not rid the employee of his obligation to hold himself available to perform his duties, it serves only to vest the employee with an election either to stand by the contract and enforce his right to payment of his salary or to accept the repudiation terminate the contract and sue for damages.”

In this case the Respondent has not ceased paying salaries to the Appellant but it was the Appellant who decided to leave employment.

In view of this then the Respondent was not obliged to hold a disciplinary hearing. In the Supreme Court case of Dalny Mine v Banda 1999 (1) ZLR 220 it was held that in an appeal based on procedural irregularities it was held that:-

“The Tribunal’s choice is either

To remit the matter so that the irregularities might be cured in a re-hearing or

to hear the evidence itself, thus rendering the irregularities irrelevant.”

After hearing the evidence in this case it is this court’s view that there is no need to remit the case for a disciplinary hearing because it is very clear that the Appellant was no longer interested in serving the Respondent.

In view of all this therefore this court finds that the appeal lacks merit.

IT IS THEREFORE ORDERED THAT:

The appeal be and is hereby dismissed with costs

The arbitral award by Honourable Arbitrator Dangwa that was handed down on the 30th April 2012 be and is hereby upheld.

Mutumbwa Mugabe and Partners	- Appellant’s Legal Practitioners

Messrs Mutamangira & Associates	- 1st Respondent’s Legal Practitioners