Breypik (Pvt) Limited v Mason Rujuwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/359/2013
HARARE ON 15 MAY & 16 AUGUST, 2013
CASE NO. LC/
---------




IN THE LABOUR COURT OF ZIMBABWE	         	   JUDGMENT NO. LC/H/359/2013

HARARE ON 15 MAY & 16 AUGUST, 2013	               CASE NO. LC/ H/379/2012

In the matter between

BREYPIK (PVT) LIMITED		–		Appellant

And

MASON RUJUWA      			–		Respondent

Before The Honourable E. Makamure, President

For Appellant 	- Ms N Moyo (Legal Practitioner)

For Respondent  	- Mr. Tawona (Legal Practitioner)

MAKAMURE, E.

The respondent was employed in terms of a letter of appointment whose terms read as follows in part:

“Subsequent to the various discussions we had with you recently, we are pleased to offer you a contract of employment as Procurement and Marketing Manager to Mapako (Pty) Ltd and its related companies.

Date of Commencement:		1st September 2009

Duration of Contract     :		Open ended

Subject to notice as detailed below:

Location:	This can be either in Zimbabwe, at your current home in Marondera, or in Francistown Botswana, at your election. While you remain in Zimbabwe, for administration reasons, you will be seconded to Breypik (Pty) Ltd. If you elect to base yourself in Francistown, you will have to wait until work and residence permits have been obtained for you …

Job description:  You will be responsible for the overall procurement, sales and marketing function for Mapako (Pty) Ltd in and outside Botswana. You will also be required also to take overall responsibility of the marketing function for Breypik Investments in Zimbabwe. Your duties … (the document then lists the duties and other issues related to his contract …)

Notice of termination:	Except in the case of gross negligence or misdemeanor, a minimum notice of three months shall be given by either party to the other in the event that either wishes to terminate the contract.

Upon being given notice of termination on expiry of the employment contract, you will be required automatically to catalogue and file all files, data and documents belonging to the company or which have accumulated as a result of your tenure with the company.”(Emphasis added).

Following the above appointment, the respondent elected to work or to be based in Botswana. It turned out that the work and residence permits were not granted. This was in August 2010.

For ease of reference the parties in this matter will be referred to as: the appellant/ “Breypik”, “Mapako” and the respondent respectively.

On 5 April 2011 the respondent wrote the following e-mail to the directors of  Mapako:

“I hope and believe that I find you well. By now Moses would have told you that my permits are still not approved after we submitted an appeal. As I am told I cannot continue working without papers hence I am going back to Zimbabwe, God willing I might find something to do.

I am very grateful for the knowledge and love I have gained during the time I worked with you, though it was short lived. I am most willing to assist on anything even on outstanding Charcoal packaging issue.

I will pray hard that God be with you and will continue to make you prosper.

Attached here are my hand over notes which has issues for PT as well.”(Emphasis added)

The next thing is that there was an arbitration regarding a dispute between the parties. The arbitral award records that there was a pre arbitral hearing on March 9, 2012.  The award was handed down on 18 May 2012.

What is not clear is what the respondent was doing during the period between his departure from Mapako and the date of the arbitral proceedings.

The issues for resolution as worded by the learned Arbitration were:

Whether or not the Arbitration has jurisdiction to decide on claimant’s matter;

Whether or not the claimant was unfairly dismissed; and

Whether or not the claimant is entitled to salaries and benefits from 1st of April 2011 to the date of Arbitral award.

The Learned Arbitrator analysed the evidence and found that Breypik  was the respondent’s employer.

It will be remembered that the respondent’s contract of employment required him to “take overall responsibilities of the marketing function for Breypik Investments in Zimbabwe.” This is quite different from the preceding statement in the same document which stated that “for administration reasons you will be seconded to Breypik” while in Zimbabwe. My understanding of the earlier statement is that it was convenient for Breypik to deal with administration issues in respect of the respondent if he was based in Zimbabwe while he remained the employee of Mapako. On the other hand if he was charged with marketing for and on behalf of Breypik, he could only do so as Breypik’s representative or agent. Besides, the respondent was “the Procurement and Marketing Manager to Mapako (Pty) Ltd and its related companies.” If the respondent was tasked to market on behalf of Breypik, then Breypik must have been “a related company” in the context of the contract of employment. How else was he expected do work for a company other than Mapako if that company did not fall within Mapako’s ‘related companies’? I therefore agree with the Learned Arbitrator’s finding in that regard.

What is of concern however is that when the requisite permits were not granted in Botswana, the respondent did not seek to come and enforce his rights in Zimbabwe as an employee of Breypik. Instead he wrote to the directors of Mapako, and in the process he hoped that when back in Zimbabwe he “might find something to do.” There is no indication that the above mail was not accepted. In the same mail he handed over his duties .What this amounted to was a voluntary act of resignation. Whatever could have happened had he not written to his employer in terms referred to above is no longer relevant. (See Retrenched Employees of National Breweries Limited as represented by Nathan Mudondo v (1) National Breweries Limited (2) The Minister of Public Service Labour and Social Welfare N.O. SC 121/02) .What the respondent did is consistent with someone either changing duties or resigning from employment. The respondent did not give the requisite three months notice. He simply made up his mind that since things did not work out for him in Botswana, he was leaving Mapako. He did not think of the Mapako’s ‘related companies’, particularly Breypik. So whether or not  Mapako or Breypik was his employer, the fact is that the appellant resigned from employment without fully asserting his rights.

I am not sure what else was agreed between him and Mapako. However I am of the considered view that the appellant is not indebted to the respondent after his resignation.  I am therefore of the respectful view that the Learned Arbitrator fell into error when she determined that the respondent is still seconded to the appellant. The respondent was not unlawfully dismissed as I have tried to show above. He resigned.

In the result I find that there is merit in the appeal.

It is accordingly ordered that the appeal be and is hereby granted.

There shall be no order as to costs.

Coghlan Welsh & Guest Legal Practitioners, Legal Practitioner for the Appellant

Muza & Nyapadi, Legal Practitioners , Legal Practitioners for the Respondent