Betty Musarirri v Zim Motor Distributions

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/198/16
HELD AT HARARE 24 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			       JUDGMENT NO LC/H/198/16

HELD AT HARARE 24 FEBRUARY 2016			      CASE NO LC/H/992/15

& 8 APRIL 2016

In the matter between:

BETTY MUSARIRI				Appellant

And

ZIM MOTOR DISTRIBUTIONS			Respondent

Before The Honourable, L Kudya, Judge

For Appellant			Mr K Chirenje (Trade Unionist)

For Respondent		Mr J R Tsivama (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the arbitrator where he ruled that appellant had resigned from her employment with respondent hence was not entitled to payment of notice pay or retrenchment package.

The background to the matter is that appellant who was in the respondent’s employ wrote on 4 April 2014 to respondent resigning from her job.  She however wrote another letter on 7 April 2014 cancelling her resignation.  The respondent accepted her resignation and paid her what was due to her.  She was irked by the fact that respondent did not consider the withdrawal of the first resignation.

This drove her to file a complaint with a labour officer and later ended up at arbitration where she wanted arbitrator to determine whether she had resigned on her own and to proffer the appropriate remedy.  She also wanted the arbitrator to determine whether she had been paid the correct terminal benefits.  Arbitrator ruled against her and that prompted her to appeal to the Labour Court on the appeal which is the subject matter of this judgment.

Her appeal grounds were set out as follows:

Arbitrator grossly misdirected by dwelling mostly on issues which had not been brought before him such as pension.

Arbitrator did not put his mind on the fact that 4 April 2014 resignation letter was superceded by a cancellation letter of 7 April 2014.

Arbitrator erred by paying a blind eye to the fact that appellant was unlawfully terminated and only paid notice pay and not retrenchment package yet letter from conciliation spell out that dispute between parties was on packages in recognition of appellant’s years of service.

Appellant prayed for a quashing of the arbitral award in its entirety and that the appellant be awarded a retrenchment package as the retrenchment was unlawful.

In response to the appeal the respondent maintained that:

Employer played no part in appellant’s resignation.  It was within its rights to refuse to accept the withdrawal of the resignation.  For appellant to succeed she needs to prove that she was coerced into resigning or that she was constructively dismissed.  If that were so she would only be entitled to reinstatement as there is no law that compels an employer to pay a retrenchment package to an employee who voluntarily resigns from employment.

Appellant does not claim constructive dismissal but that withdrew resignation after

she learnt that she would not get more benefits if she resigned.  That was legally incompetent.  Employment can be terminated in various ways.   Appellant failed to appreciate the significance of her resignation and mistakenly believed she was entitled to a retrenchment package.  Employer has common law right to terminate employment on notice but if resignation is disregarded appellant had terminated contract on notice and had been paid her notice pay in full.  Further, arbitrator has no jurisdiction to deal with retrenchment disputes which are the preserve of the retrenchment board.

Arbitrator dealt with pension issue since he had been asked to deal with appellant’s entitlement following termination of appellant’s employment contract.  He thus correctly found that the appellant had been paid all her dues by the respondent.

In the result respondent prayed that the appeal be dismissed for being completely

devoid of merit.

The law is settled that appeal against arbitral award is only on points of law.  See Section 98 (10) Labour Act [Chapter 28:01].  The point of law fact debate does not deserve repetition as it is clearly captured in ample authority including Muzuva v United Bottlers 1994 (1) ZLR 217 (SC).

The question to be answered as regard instant case is whether facts of the case demonstrate that arbitrator fell foul of the law in his legal and factual finding on the matter  which was before him.  Each of the grounds of appeal is dealt with below;

Ground 1

A reading of the certificate of settlement which referred the matter to arbitration states clearly that the issue at stake was the “alleged non payment of terminal benefits.”  It is however noteworthy that no determination of that issue could be made without first referring to how the issue of non-payment of benefits arose. It is within that context that the arbitration had to receive in submissions the detail about how appellant left employment and ended up wanting to claim the so called terminal benefits.

A reading of the full record at arbitration as spelt out by the documentation filed of record which exchanged hands then there are few issues that came out clearly from those documents.  Firstly it is noteworthy that indeed appellant resigned of her own volition.  There is no evidence that she was coerced into resigning and the respondent can thus not be faulted to accept that resignation.  If the appellant did her homework later on after she had resigned she only had no one but herself to blame.

The argument about her sophistication or otherwise is ill placed.  If indeed she was so unsophisticated as contended by her representatives that was more the reason why she should have done her homework just before tendering her resignation.  Besides a reading of the resignation note show that she was giving respondent effectively 3 day notice and there is no legal of factual basis where she would herself expect to be paid 3 months notice pay yet she gave 3 days notice.

There is nothing legally impermissible for the respondent to have accepted the resignation and ignores the withdrawal.  It was her unilateral decision ad she had to stand or fall with her own decision.  The court is therefore not persuaded that there is any fault which can be attributed to the arbitrator on account of this ground call for the vacation of his award.  The ground being without merit should fail.

Ground 2

As stated at onset arbitrator was clear that issue at stake was payment of a package to appellant.  He however could not conclude on it without delving into the background giving rise to the claim.  He thus cannot be faulted for his approach.  The ground lacking in merit should also fail.

Ground 3

Respondent put it in clearer terms that retrenchment issues are not arbitrator’s domain and that legal reasoning is without doubt.  The arbitrator’s finding that he could not award appellant what she claimed cannot be faulted.  In the ultimate it is clear that the appellant’s appeal is meritless and it should fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed.

Each party to bear own costs.

Sawyer & Mkushi, respondent’s legal practitioners