Zimbabwe National Family Planning Council v [Respondent Name Unknown]

### Preamble
JUDGMENT NO LC/MC/03/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE, 21ST MAY 2015
CASE NO. LC/MC/50/14
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT  HARARE, 21ST  MAY 2015   		CASE NO. LC/MC/50/14

AND 19th FEBRUARY, 2016

In the matter between:-

ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL         -	APPELLANT

The Respondent was employed by Applicant as a Provincial Manager from September 2008. She resigned on the 5th September 2013. After her resignation she referred a complaint of constructive dismissal to a Labour Officer. The parties having failed to conciliate the matter was referred to compulsory arbitration. The Arbitrator found that the Respondent had been unfairly dismissed through the Appellant actions that were in violation of Section 12B (3)(a) of the Labour Act [Cap 28:01]. The Appellant was directed to pay Respondent damages in the amount of US$ 16 982.72 in damages for loss of employment by the 30th of May, 2014.

Aggrieved by the determination the Appellant noted the present appeal. The basis for Appellant seeking the setting aside of the award is basically the following;

The Arbitrator erred generally at law in finding that Respondent was constructively dismissed and more particularly in

(a) 	Finding that Appellant was supposed to conduct an exit interview and in any case that such failure gives rise to a case of constructive dismissal. This finding is grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.

(b) Concluding that the Respondent had been constructively dismissed despite his finding that:-

“it is now difficult to demarcate if indeed the Respondent was wielding an axe on the particular misconduct which was alleged against her.”

This finding is grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.

(c) Finding that the issuance of a charge letter against an employee who is on

leave is proof that the employer does not want the employment relations to continue.

This finding is grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.

Failing to take note and find that the mere existence of a grievance on the employee party does not prove constructive dismissal. This finding is grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision. The Arbitrator ought to have assessed whether the grievances (that remain unidentified) are so serious on their own as to imply that the Appellant did not intend to continue employing the Respondent.

Failing to find an employee ought to exhaust all means of resolving a dispute – including grievance handling procedures – before leaving on the basis of constructive dismissal. In casu it was/is common cause that Respondent did not subject the grievances to any grievance handling procedure.

Failing to find that an employee who alleges constructive dismissal must leave immediately on occurrence of the offending event. In casu, the record shows that Respondent did not leave immediately and hence the Arbitrator ought to have found that there was no constructive dismissal.

The Respondent in her Notice of Response took a point in limine that all the grounds of appeal raised in so far as they are based on factual issues do not raise points of law. On this point alone the Respondent submits that the appeal should be dismissed.

Appeals against arbitral awards to the Labour Court can only be on a ‘question of law’. This is enshrined in Section 98 (10) of the Labour Act [Cap 28:01]. The meaning of ‘question of law’ was considered in the celebrated case of Muzuva vs. United Bottlers (Private) Limited 1994 (1) ZLR 217 (S). In terms of this decision the expression is taken to mean three senses i.e.

‘First, it means a question which law itself has authoritatively answered to the exclusion of right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Second, it means a question as to what the law is. Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. And third, any question which is within the province of the judge instead of the jury is called a question of law . . . . . . .  . .”

The courts have over the years expanded the scope and meaning of ‘question of law’ to apply even where the court has considered matters on the facts. In Hama vs. National Railways of Zimbabwe 1996 (1) ZLR 64 (S) the Supreme Court held that a gross misdirection on facts amounts to a misdirection of law. In Mutsutsa & Anor vs. Cagar (Private) Limited 2009 (2) ZLR 327 (S) a finding of fact which is so outrageous in its defiance of logic that no sensible person who had applied his or her mind to the question would make such a finding raises a question of law. On the basis of the legal principles outlined above I am satisfied that the grounds of appeal raised in this matter raise questions of law. The point in limine is consequently dismissed.

Although the Appellant raised several grounds the sole point for determination in this appeal is whether the Arbitrator’s finding that the Respondent was constructively dismissed was grossly unreasonable as to amount to a question of law. I turn to address the point as raised by the Appellant.

Before the Arbitrator the Appellant had raised a claim for constructive dismissal based on the provisions in Section 12B (3) of the Labour Act [Cap 28:01]. She submitted that she had been progressively subjected to intolerable working conditions which had culminated ultimately in a disciplinary hearing. She had aborted the disciplinary hearing and opted to resign. She had in her resignation letter indicated the reason for resignation to be the failure on Appellant’s part to honour its contractual obligations towards her. The contractual obligations were outlined to be the issuance of a personal issue vehicle for both business and social use which despite numerous requests had not been fulfilled. Respondent submitted that she had instead been given an old ailing pool vehicle which was not hers alone. She had to resort to public transport. The Respondent had pursued the grievance procedures resulting in the matter being referred to the Labour Court in Gweru.

Secondly the Respondent alleged the Appellant had unilaterally stopped payment of a legal benefit in January 2009 i.e. post (3rd issue) basic qualification and medical allowance.

Fourthly the Respondent alleged that the Appellant unfairly levelled charges of misconduct against her for having taken up alternative full-time employment with City of Mutare in circumstances where the practice was a norm in the organisation. It was common that managers would take up part-time employment whilst on leave.

The Arbitrator in his analysis of evidence found that the issues of personal vehicle, non-payment of medical and post basic allowances were outside his jurisdiction as the matters were pending before the Labour Court. He however found that without delving into the grievances that were pending before the Labour Court that Appellant still had unfairly dismissed the Respondent. His reasoning was that the Appellant should have conducted an exit interview of the Respondent, the Appellant also accepted Respondent resignation which amounted to an acknowledgement on Appellant part of its wrongdoing. The Arbitrator also found that Appellant should have pursued the issues raised in the resignation letter. Finally the Arbitrator found that the Appellant had instigated disciplinary proceedings when Respondent was on leave clearly showing its mala fides in seeking to terminate Respondent’s employment. On this basis the Arbitrator found that the Respondent was unfairly dismissed. The Appellant had breached the provisions in Section 12 B (3)(a) of the Labour Act [Cap 28:01].

Section 12B (3)(a) of the Labour Act [Cap 28:01] provides as follows;

“(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; “   (my own underlining)

Section 12 B (3)(a) clearly provides that an employee is unfairly dismissed where the contract is terminated with or without notice because (i) continued employment was made intolerable (ii) the intolerable situation was deliberately caused by the employer. It follows that in order for the court to establish constructive dismissal an employee has to necessarily prove a causal link between his/her resignation with an intolerable situation created by the employer. In terms of Section 12 B(3)(a) the employee must show the conduct complained of was deliberate. In other words an employee must prove that it was the employers intention to cause the employee to resign. On the basis of Astra Holdings vs. Peggy Kahwa aptly referred to by the Appellant an employee who argues that she has been constructively dismissed should resign immediately.

Applying the law to the facts in this matter it is clear that the Arbitrator grossly misdirected himself at law in finding the Respondent was constructively dismissed. The Arbitrator clearly failed to apply the requirements as set out in Section 12 B (3) (a) of the Labour Act [Cap 28:01] to the facts of the matter. He also made grossly unreasonable findings which no reasonable person properly applying his mind to the matter would have arrived at such a decision.

I proceed to show how.

Firstly the Respondent had referred a claim for constructive dismissal. She was thus required under Section 12 B (3)(a) to establish before the Arbitrator that the Appellant had deliberately created an intolerable working environment in order to induce her to resign. The record of proceedings shows that no evidence was tendered by the Respondent to substantiate her claim. The Arbitrator himself did not even attempt to address the requirements as set out under Section 12B (3)(a) much less address any evidence placed before him. His findings generally in the absence of evidence were clearly a gross misdirection at law. I however turn to address the specific findings by the Arbitrator.

The Arbitrator made a finding that Appellant was supposed to conduct an exit interview and its failure to do so resulted in a case of constructive dismissal. That finding was grossly unreasonable. It also had no basis at law. The Arbitrator also found that by accepting Respondent resignation the Appellant acknowledged its own wrongdoing. This finding was grossly unreasonable and also had no basis at law. At law resignation is a unilateral termination of the contract of employment by an employee. An employee can resign on the basis that a contract of employment is of a voluntary nature. There is actually no requirement for an employer to accept the resignation. So the fact that Appellant in this case accepted resignation is neither here nor there. It did not point to Appellant’s creation of an intolerable situation for the Respondent. In fact the Respondent’s decision to resign and claim constructive dismissal thereafter in circumstances where the Appellant had instigated disciplinary procedures would seem, on the authority of Madakureva vs. Grain Marketing Board 1998 (1) ZLR 145 (S), to suggest that she resigned in order to evade due process of law. See also Muzengi vs. Standard Chartered Bank 2000 (2) ZLR 337.

The Arbitrator also found that the Appellant had instigated disciplinary proceedings when Respondent was on leave clearly showing Appellant’s mala fides in seeking to terminate Respondent’s employment. The Arbitrator clearly erred in this regard. There was nothing to stop Appellant once there was reasonable suspicion that Respondent had committed an act of misconduct to institute disciplinary proceedings. It was within the Appellant’s right as the employer to conduct disciplinary proceedings.

At the core of Respondent case before the Arbitrator were the issues of a personal vehicle, non-payment of medical and past basic allowances. The Arbitrator found that as these issues were already pending before the Labour Court they were outside his jurisdiction. Having pursued that channel to address her grievances it was not proper in my view for the Respondent to have then opted to resign and then claim constructive dismissal before the grievances had been addressed by the Labour Court. She ought to have exhausted all the domestic remedies.

The Appellant submission in respect of the grievances was that the Respondent case was not an isolated individual case. The Appellant had been unable to procure vehicles for its provisional Manager for over 5 years. It was also the position that the non-payment of post qualification allowances arose out of Respondent’s financial constraints. It did not affect her only but all other Provisional Managers. On the basis of these submissions which were uncontroverted by the Respondent it is clear that the Appellant did not deliberately create an intolerable working condition for Respondent. In any event even if it were be to argued that it was the position on the strength of Astra Holdings vs. Peggy Kahwa decision referred supra the Appellant ought to have resigned immediately when the conditions became intolerable. She could not have remained six years in employment only to then resign and cite constructive dismissal.  The Arbitrator ought to have found that there was no constructive dismissal in the circumstances of this case. His award clearly has to be set aside.

It is accordingly ordered as follows;

The appeal be and is hereby allowed.

The arbitral award dated 16th April 2014 is hereby set aside.

There is no order as to costs.

Dube, Manikai & Hwacha – Appellant’s Legal Practitioners