Rita Marque Mbatha v National Foods (Private) Limited

### Preamble
Judgment No. SC 149 /20
Civil Appeal No. SC 686/19
1
REPORTABLE
(141)
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REPORTABLE	(141)

RITA     MARQUE     MBATHA

v

NATIONAL     FOODS      (PRIVATE)    LIMITED

SUPREME COURT OF ZIMBABWE

UCHENA JA, MATHONSI JA & CHITAKUNYE AJA

HARARE: JUNE 8, 2020 & NOVEMBER 9, 2020

Appellant in person

A. Maguchu, for the respondent

UCHENA JA: 	This is an appeal against the whole judgment of the Labour Court handed down on 4 October 2019, upholding the Arbitrator’s decision, to the effect that the appellant was not constructively dismissed.

FACTUAL BACKGROUND

The detailed facts of the case can be summarised as follows;

The appellant was employed by the respondent as a Personal Assistant to the Managing Director, Transport Division. By letter dated 15 June 2009, the appellant was notified that the respondent had restructured divisions to avoid going into insolvency resulting in her post being abolished. The appellant was offered either a retrenchment package or to be placed on garden leave pending redeployment to any other available post within the group, if she opted to remain an employee of the respondent. The exercise affected nine (9) other employees in the respondent’s Transport Division, whose posts were similarly abolished.

The appellant expressed her displeasure with the respondent’s decision by issuing a memorandum to her employer requesting a grievance hearing. Further aggrieved by the respondent’s failure to arrange a hearing, she referred the dispute to a Labour Officer. Conciliation proceedings were conducted but no settlement was reached and the matter was referred to arbitration.

On  30 October 2009, the Arbitrator ordered that the appellant be reinstated without loss of salary and benefits, and if reinstatement is no longer possible the parties should negotiate a severance package in lieu of reinstatement within 30 days. The respondent failed to reinstate the appellant within 30 days but thereafter on 1 March 2010 offered the appellant a position as Personal Assistant to the Warehouse Director. The appellant accepted the offer. Upon taking up the alternative position, the appellant was still aggrieved by how outstanding issues on alleged unilateral variation of conditions of employment on fuel and telephone allowances which had arisen in May 2008 had remained unresolved as well as outstanding bonus payment for 2008, leave days and being awarded a lower percentage increment when salaries of the respondent’s employees were increased in February 2009.

On taking up the new post she was advised that her new post, would be on the conditions she enjoyed before being placed on garden leave. The appellant raised new grievancies arising from her new work station, namely, lack of internet, the sharing of a printer and the condition of her office.

As a result of the unresolved old and new issues, the appellant resigned from employment at the end of March 2010 after having worked for only six (6) days of that month. She explained that she did not spend most of the days of that month at work because the office allocated to her made her sick. After her resignation, the appellant approached a Labour Officer alleging that she had been constructively dismissed by the respondent. The dispute was conciliated to no avail and the matter was referred to arbitration. Among the issues submitted by the appellant for dispute resolution, the Arbitrator identified a few as having been properly placed before him. These are, the delay in appellant’s reinstatement, the condition of the appellant's office, lack of internet in that office, lack of confidentiality surrounding the use of a shared printer and the alleged unilateral variation of her contract of employment.

In respect of the condition of the office the Arbitrator held an inspection in loco after which he held that even though the office had some defects it was clean and was now being used by the Wharehouse Manager whose position is three grades higher than the appellant’s, who expressed satisfaction with the office. Prior to the appellant’s resumption of duty the office was, according to evidence placed on record by the appellant through her reply to the respondent’s submissions to the arbitrator, being used by one Farai who had to be moved to another office to give room to the appellant. According to the email quoted by the appellant the decision to move Farai was hesitantly made inspite of how he was likely to view his removal from that office. It, in the relevant part, reads as follows:

“Response from Dumi The only option is to remove Farai. Kessy-- not sure he will view that in the right light. Other than that I need your help.

Response from Kessy. That’s the way to go. Farai can go back in the Despatch Office since its now reporting to him or you can get him somewhere convenient for him.” (emphasis added)

It is not in dispute that the office was inspected by an officer of the City of Harare who made the following comments:

“The office was found to be having windows which were not openable to the outside air.

Half of the window area was not openable.

Natural lighting was not available and instead artificial lighting was provided.

In view of the above the office can be made habitable by:

Ensuring that half of the window area (50%) is openable.

The openable windows should ventilate to the external air.”

These observations were confirmed by what the Arbitrator observed during the inspection in loco. He however gave a broader picture of the respondent’s premises, including the type of steps leading to the Director’s office. He also found the office being used by an officer senior to the appellant inspite of its short commings.

After taking the claimant and respondent’s submissions into consideration the Arbitrator held that the appellant had failed to prove that she was constructively dismissed. He further held that the other issues raised by the appellant were resolved by the first Arbitrator, hence, they could not be raised again. Aggrieved by the Arbitrator’s decision the appellant noted an appeal to the court a quo on the ground that the Arbitrator grossly misdirected himself by concluding that there was no evidence to prove constructive dismissal.

The court a quo, dismissed her appeal holding that she had not been  constructively dismissed.

FINDINGS OF THE COURT A QUO

In determining the appeal before it the court a quo held as follows:

“Having said all that where do we stand?

Access to internet- The Arbitrator’s decision cannot be interfered with. It is not for the employee to decide that internet services are crucial to her work. It is the work of the employer and an employee has to show how the absence of internet can be seen to be an attempt to dismiss her from work.

Communal Printer- Again the Arbitrator’s decision sounds good. This is a matter the parties could have discussed to alert each other of its sensitivity. It cannot be said that sharing of the printer was in itself an attempt to cause the employee to leave employment. In the event that sensitive documents fall into wrong hands the employer should be held responsible for introducing the risk.

Reinstatement- Once the employee accepted belated reinstatement the issue was water under the bridge. She was reinstated late but with effect from the date as per the judgment and with all benefits of reinstatement. So there is no issue of constructive dismissal.

Condition of the office- On this issue it is important to understand that technocrats and the law have optimum conditions for the industry. However in practice these are not necessarily always met by employers. ------ However the failure by the employer to rectify them did not mean that the employer wanted to create constructive dismissal. Thus the insistence by the employee that an expert had condemned the office and therefore there was constructive dismissal does not carry the day. It does not follow. The employee could have been more sensitive to such an environment but it is not obvious that she was housed there in order to force her to resign.

Unilateral Alteration of Contract- Even if it were to be accepted that the contract was altered it would not necessarily follow that it was altered in order to facilitate constructive dismissal. The appellant simply had a duty to prove the alteration and claim what was due to her. There is an explanation for the (sic) less increment if any at all. The explanation does not point to an attempt to cause constructive dismissal. The explanation that the appellant was already earning more. In the circumstances it was an issue of the appellant insisting on her right to the same percentage increment as her colleagues. That could be brought to court on its own and not in the light of constructive dismissal”

The court a quo dismissed the appeal on the basis that the appeal lacked merit as the appellant had failed to prove how the absence of internet, use of a communal printer, belated reinstatement, condition of the office and alleged variation of her conditions of service, should be interpreted as an attempt to dismiss her from employment. In respect of the delayed reinstatement after the first arbitral award, the court a quo was of the view that the appellant’s acceptance of the belated reinstatement with no loss of salary or benefits was indicative of there being no prejudice suffered to found a claim of constructive dismissal.

Aggrieved by the decision of the court a quo the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1.	The court a quo grossly misdirected itself by averring that the appellant was not constructively dismissed. Such an approach was irrational since it was inconsistent with the available evidence.

2.	The court a quo committed a serious misdirection on the facts and in law in finding that the appellant had not properly crafted the grounds of appeal since the averments made were inconsistent with the available evidence.

3.	The judgment of the court a quo is obviously and patently wrong and stands in breach of the appellant's fundamental justice such as rights being set out in section 56(1), 65(1), 68(1) and 69(1) of the Constitution of Zimbabwe more particularly in incorrectly stating that;

Certain payments and increments could be sued on apart from claiming constructive dismissal and that the explanation of the respondent did not point to an attempt to cause constructive dismissal.

The court a quo grossly erred by condoning a deliberate breach of

statutory duty by the respondent and disregarding findings made by an expert on the inhabitability of the office.

4.	The court a quo made a gross misdirection on the facts, amounting to a misdirection in law, in overlooking evidence, not exercising its equitable discretion at all, notwithstanding facts proffered which manifested good cause for the relief sought for constructive dismissal.

5.	The court a quo committed a serious misdirection and acted capriciously by failing to exercise its discretion properly through an award of costs against the appellant when there were no exceptional circumstances or substantial reasons which warranted same.”

The appeal raises one issue for determination.

Whether or not the court a quo correctly found that the appellant was not constructively dismissed?

SUBMISSIONS MADE BY THE PARTIES.

The appellant submitted that she abides by her heads of Arguments filed of record. The issues raised by the appellant’s heads are to the effect that she was constructively dismissed. The appellant claimed that she was constructively dismissed because she was denied internet services, had to share a printer with other employees, that her reinstatement did not fall within the period specified by the Arbitrator, the condition of the office she was allocated and the alleged unilateral alteration of her conditions of service. She argued that the above proved that she was constructively dismissed.  She attached a report from the City of Harare, which described the shortcomings of her new office. In light of these submissions, the appellant prayed that her appeal succeeds.

Mr Maguchu for the respondent submitted that the court a quo correctly held that the appellant was not constructively dismissed. He argued that the court a quo correctly interpreted constructive dismissal as provided under s 12B  (3) (a) of the Labour Act (Chapter 28. 01). He contended that the alleged breach of contract or unlawful conduct was insufficient to sustain constructive dismissal. He further submitted that of all the issues raised by the appellant only two are worthy of consideration namely, the alleged unilateral variation of the contract of employment by the respondent and the condition of the office she was allocated.

Concerning the alleged unilateral variation of the contract, counsel for the respondent argued that the appellant had failed to produce the original contract to prove the existence of the alleged variations. He further argued that, that does not take her case any further. About the state of the office, Mr Maguchu averred that the appellant’s case relied heavily on the letter from Harare City Council stating that the building, particularly, the office of the appellant did not comply with its by-laws. He further averred that the letter was not placed before the Arbitrator hence, could not be placed before the appeal court. He argued that, in any event, even if it was to be accepted, it could not take the matter any further since there was no proof that the allocation of that office was intended to make the appellant’s continued employment intolerable. He argued that such an inference can not be drawn as the office was previously and subsequently allocated to officers senior to the appellant who the respondent obviously did not intend to constructively dismiss.

Counsel for the respondent submitted that it was not helpful for the appellant to refer to South African authorities on constructive dismissal as the South African position was slightly different from the Zimbabwean position. He further submitted that the Labour Relations Act (1995) of South Africa provides that constructive dismissal is when an employee, with or without notice, terminates his or her employment because the employer would have rendered continued employment intolerable. Counsel for the respondent averred that the Zimbabwean position, according to s 12B (3) (a) of the Labour Act, is slightly different in that constructive dismissal occurs when an employee, with or without notice, terminates his or her employment because the employer would have deliberately rendered continued employment intolerable. He argued that this difference is critical as the use of the word “deliberate” means that the intention of the employer should be established, which the appellant failed to do.

Mr Maguchu further submitted that there was no evidence of constructive dismissal. He contended that the office which was alleged to be uninhabitable by the appellant was used by her superiors before and after she left contrary to her allegation that the employer intended to make her employment intolerable. He submitted that the findings of the court a quo are reasonable and that there was no basis on which this Court can interfere with them.

THE LAW

The law on constructive dismissal is provided for by s 12B (3) (a) of the Labour Act, which 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;” (emphasis added)

The interpretation of s 12B (3) (a) is guided by the phrase “because the employer deliberately made continued employment  intolerable for the employee” . The use of the word “deliberately” means the employer must have intentionally done something which causes the employee to terminate the contract of employment intending to cause the termination of such employment.

Black H, Black’s Law Dictionary, West Publishing Co., 4th Ed, 1968 at p 513 defines “deliberate” to mean “well-advised, carefully considered and wilful…” The word denotes the presence of an intention before a certain act or conduct is executed. Therefore constructive dismissal occurs when an employer intentionally makes continued employment intolerable for an employee. This also means an employer’s conduct which is not accompanied by an intention to make continued employment intolerable for the employee cannot constitute constructive dismissal.

The word “intolerable” determines why the employee resigns and when the employee is expected to  leave. According to the Oxford Advanced Learners Dictionary, it means “so bad or difficult that you cannot tolerate it; completely unacceptable”. Some of its synonyms are “unbearable”, “insufferable” and “unendurable. These words lead to the accepted position that the deliberate intolerable conduct of the employer should result in the employee immediately leaving employment with or without notice because of the intolerable circumstances deliberately created by the employer. The employer’s intolerable conduct must be such as goes to the root of the contract of employment and  be sufficiently serious to justify a finding of constructive dismissal. The employer’s conduct must be “deliberate” and “intolerable”. Conduct which falls short of being “intolerable” but can be irritating or annoying to an employee does not constitute constructive dismissal. The legislature’s intention is clearly that the conduct which constitutes constructive dismissal must be “intolerable”.

The employee’s resignation because of the employer’s deliberate intolerable conduct must be assessed objectively on the basis of the view which may be held by a reasonable employee towards the employer’s conduct. It does not depend solely on the views of the affected employee. The test is an objective one. It must also be stated that intolerable conduct which is not immediately reacted to cannot be relied on long after the event.

What constitutes constructive dismissal was commented on by Malaba JA (as he then was) in Astra Holdings (Pvt) Ltd v Kahwa SC 97/04 where he said:

“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment. In Western Excavating v Sharp [1978] 1 ALL ER 713 LORD DENNING MR at 717 said;

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”  (emphasis added)

Professor Madhuku L, Labour Law in Zimbabwe, Weaver Press, 2015 at p 100-101 makes the following remarks concerning constructive dismissal in terms of s 12B (3) (a) of the Labour Act:

“This is narrower than constructive dismissal under the common law because of the requirement that the conduct of the employer be ‘deliberate’. The test for whether or not continued employment was intolerable is an objective one: would a reasonable employee have found continued employment intolerable? There must be a causal nexus between the resignation of the employee and the intolerable situation. It appears that the intolerable situation must be the sole cause of the resignation for the constructive dismissal to be automatically unfair under section 12B (3) (a). Finally, the employer’s conduct must have been ‘deliberate’. This means that the employer must have intended to cause the resignation of the employee. Thus, where the employer is genuine, but mistaken, about certain contractual terms with the employee, this cannot be said to be “deliberate”. (emphasis added)

John Grogan in his Book “Workplace  Law “ 11th  Ed at pp 174-179 explains the various circumstances in which an employee can or cannot be held to have been constructively dismissed.

WHETHER OR NOT THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS NOT CONSTRUCTIVELY DISMISSED?

The appellant is challenging the findings of the court a quo. The position of our law on such a challenge is settled. The findings of a lower court cannot be interfered with unless it is proven that they are grossly irrational. The law was clearly stated in ZINWA v Mwoyounotsva SC 28/15, where this Court held that:

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it, or that the decision was clearly wrong.”

In determining this appeal I will assess the correctness or otherwise of the determinations of the court a quo under the subheads it used in determining the appeal before it.

ACCESS TO INTERNET

In my view the court a quo correctly dismissed the appellant’s appeal under this sub-head. It correctly held that the Arbitrator’s decision cannot be interfered with, as it is not for the employee to decide that internet services are crucial to her work. It correctly observed that, it is the work of the employer. Therefore an employee has to show how the absence of internet can be seen to be an attempt to constructively dismiss her from employment.

The appellant did not demonstrate how lack of internet can be viewed as deliberate conduct by the employer designed to cause her to resign. An employee cannot claim constructive dismissal for being denied a facility which is not essential for the performance of her duties. The relationship which the employer can be deemed to have breached is that touching on the contract of employment or things essential for the performance of the employee’s duties according to the contract of employment. It can not be extended to the employee’s preferences or needs beyond those essential for the performance of the employers work.

COMMUNAL PRINTER-

In dismissing the appellant’s appeal under this sub-head the court a quo said:

“Again the Arbitrator’s decision sounds good. This is a matter the parties could have discussed to alert each other of its sensitivity. It cannot be said that sharing of the printer was in itself an attempt to cause the employee to leave employment. In the event that sensitive documents fall into wrong hands the employer should be held responsible for introducing the risk”.

This is a correct assessment in terms of the law on constructive dismissal. The appellant is not the only one affected by the communal use of the printer. Other employees who were using the communal printer did not find the communal use of the printer intolerable. They can, in this case, be used to establish that a reasonable employee would not have found communal use of the printer intolerable. An employee cannot claim constructive dismissal for arrangements made by the employer for which even if a problem arises, she cannot be blamed for the risk taken by the employer. Conduct which constitutes constructive dismissal must be deliberate and sufficiently serious and go to the root of the contract of employment. In this case it cannot be said the employer intended to constructively dismiss all employees who had to share the use of a printer. The respondent had in June 2009 retrenched some employees to avoid insolvency, therefore the communal use of the printer can be viewed as a budgetary measure.

DELAYED REINSTATEMENT.

In dismissing the appellant’s appeal under this sub-head the court a quo said:

“ Once the employee accepted belated reinstatement the issue was water under the bridge. She was reinstated late but with effect from the date as per the judgment and with all benefits of reinstatement. So there is no issue of constructive dismissal.”

The employer’s intolerable conduct is according to s 12B (3) (a) expected to induce exit from a contract of employment not entry into a contract of employment or a resumption of employment as happened in this case. The court a quo therefore correctly held that the appellant’s acceptance of delayed reinstatement is proof that she did not find the delay intolerable. As it correctly put it, her acceptance made the issue water under the bridge.

CONDITION OF THE OFFICE.

The court a quo held that the condition of the office though undesirable did not constitute constructive dismissal because it was used by officers senior to the appellant in the same condition before and after she left employment. The appellant therefore failed to prove that by allocating her that office, the employer intended to make her continued employment intolerable. A reading of the record shows that the same office she complained about was given to and used by her superiors before and after it was allocated to her. The Arbitrator’s observations during the inspection in loco established that the respondent’s office accommodation is generally inadequate which obviously affects most employees including the Director whose office can only be accessed through the steps with 30 centimeter gaps between them. This means the Director and all employees who have to go to his office have to use those steps. In view of this, the issue of the respondent “deliberately” making the appellant’s continued employment intolerable has not been established because other employees were using the same office, before and after it was allocated to her.

The facts of this case cannot lead to a conclusion that the respondent deliberately allocated the office to the appellant intending to make her continued employment intolerable. Such a conclusion would not be logical, as the respondent cannot be said to have intended to constructively dismiss every employee who used that office and the steps to the Director’s office. The facts point to the general inadequacies of the respondent’s work place. The steps to the Director’s office bear testimony to the inadequacies. It seems to me to be an old industrial building which is being used as it is.

While general inadequacies of an institution’s facilities as commented on by the court a quo, should be improved they do not constitute constructive dismissal. This is because they, without any intention on the part of the employer, affect employees in general and are clearly not intended to induce the resignation of any employee. The employer in such circumstancies cannot be said to have a deliberate intention to make its employees who use such facilities’s working conditions intolerable.

UNILATERAL VARIATION OF CONTRACT.

The court a quo, in dismissing the appellant’s appeal under this sub-head, held that it did not constitute constructive dismissal. The alleged variation took place as long back as May 2008, long before the appellant was placed on garden leave on 15 June 2009. She tolerated the issue till she was placed on garden leave. She was again prepared to come back to work before the issue was resolved. As already explained above under the narration of the law on constructive dismissal  the employee must immediately resign or give notice to resign due to the sting of the employer’s intolerable conduct. Lord Denning M R. in the case of Western Excavating v Sharp [1978] 1 ALL ER 713 @ 717 cited by Malaba JA (as he then was) in the case of Astra Holdings (Pvt) Ltd v Kahwa (supra) said:

“The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”  (emphasis added)

In this case the appellant did not leave at the instant in May 2008 or soon thereafter when the employer allegedly stopped the fuel and cell phone allowances. She continued in employment despite the alleged unilateral variation. The respondent gave an explanation and produced a contract signed by the appellant which does not include fuel and cell phone allowances. The parties had been haggling over these issues for nearly two years before the appellant alleged constructive dismissal on their account. The issues on unilateral variation,the 2008 bonus and the alleged reduced increment do not constitute constructive dismissal as they are old issues whose sting was not reacted to at the instance or immediately. It can therefore be assumed that the appellant had long waived her right to claim constructive dismissal on their account when she sought to rely on them nearly two years later.

The appellant failed to prove any misdirection by the court a quo. The court a quo correctly dismissed her appeal with costs. There is no reason why the costs of this appeal should not follow the result.

The appeal has no merit. It is accordingly dismissed with costs.

MATHONSI JA:			I agree

CHITAKUNYE AJA:			 I agree

Appellant in person

Dube, Manikai & Hwacha Commercial Law Chambers, respondent’s legal practitioners