Erica Gudza v Sparrow Hauliers t/a J J Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/321/2016
HARARE, 4 FEBRUARY 2016 &
CASE NO LC/H/34/2014
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/321/2016

HARARE, 4 FEBRUARY 2016 &			                      CASE NO LC/H/34/2014

13 MAY 2016

In the matter between

ERICA GUDZA							    APPELLANT

Versus

SPARROW HAULIERS						   RESPONDENT

t/a J J TRANSPORT

Before the Honourable D L Hove J

For the Appellant      W Madzimbamuto (Legal Practitioner)

For the Respondent   P Mabhundu (Legal Practitioner)

HOVE J:

The appellant was employed as a data capturing clerk by the respondent in July 2005. She rose through the ranks to the position of senior accounts clerk.

In April 2013, money went missing at the respondent’s work place. The appellant and some of the respondent’s cashiers were taken to the Police Station as suspects.

The respondent then appears to have told the appellant not to report for duty. On 14 May she says she was called for a hearing but the hearing did not take place and she was verbally told to go back home. She was asked to write a report of what had transpired in connection with the missing money. She was told that her contract of employment was still intact but she was denied access to her work place.

As a result, the appellant consulted her lawyers who on 20 May wrote to the respondent as follows:

“Re:	UNFAIR LABOUR PRACTICE – CONSTRUCTIVE DISMISSAL – ERICA GUDZA

We write to you at the behest of our above named client. Our client instructs us that she was arrested on malicious charges at the instance of the employer, the same charges which were dropped by the court.

After the acquittal your company refused to reinstate her. From the date of her acquittal around 8 May 2013 she has been denied her job without any reasonable explanation and was later advised telephonically to come for a hearing on Tuesday 14 May 2013, the same which again did not take place and she was advised to go back home and would be advised in due course of the next step.

She further advises that she was told to write a report and the same she wrote on 16 May 2013 after which she was told to either resign or face arbitrary disciplinary action. Notable from your company conduct is that:

No suspension letter was ever served to our client, she was just told to stay at home.

No notification to attend a disciplinary hearing has been served on our client to date.

Our client is being forced to resign or face a gruelling battle with the employer.

It is respectfully our view that such conduct is not only in direct contravention of the Labour laws of the land but also is vindictive in nature. It has become clear to our client that there is no longer any prospect of restoring the status quo and the relationship has irretrievably broken down because of the manner in which the employer has treated her by creating an environment hostile to her thus she can no longer continue in employment of the company.

We are therefore instructed to demand as we hereby do now the payment of damages for unlawful termination of the contract of employment on the basis of constructive dismissal to be agreed by both parties within seven days of your receipt of this letter. For any correspondence with regard to this matter kindly forward the same through our offices.”

On 22 May 2013 the respondent replied:

“Re: 	UNFAIR LABOUR PRACTICE CONSTRUCTIVE DISMISSAL – ERICA GUDZA

We acknowledge receipt of your letter of even reference dated 20 May 2013. We are very surprised by your claim as your client was never suspended or dismissed. While she was picked up by the police for questioning together with two of her workmates that was because the police felt she had a criminal case to answer not because the company is blood thirsty and thus caused her arrest.

Your client has been in and out of the police station for the last couple of days. The police also requested us not to discuss the issues your client and her colleagues were being questioned for saying that could jeopardise their investigations. We were informed that Miss Gudza was cleared on one of the three cases being investigated by police in which one of her colleagues was convicted and sentenced. We are meeting with the police to get clarification on whether we can now proceed with the labour aspect of the three employees’ cases as we also took the opportunity to carry out our own investigations following their arrest and where we believe that any of them breached the Code of Conduct, or acted in any manner which is inconsistent with their contract of employment then disciplinary action will definitely be taken.

While your client was asked to write a report on 16 may 2013, no hearing has taken place in respect at any of the three employees, your client included. It is also not true that she has been told to resign because the issues which are at present the subject of police investigations are of a very serious nature which caused serious prejudice to the company and as such, the employer would like a proper inquiry carried out into the matter(s). The employer would also like to ensure that he recovers every cent lost through any of these employee’s evil machinations and ensure that those who are innocent are not punished together with the guilty. The company owes this not only to the affected employees but to all its workers.

We have not acted in any manner that is consisted with an employer wishing to terminate an employee’s contract, constructively or otherwise.

We have not issued any suspension letter to your client simply because she has not been suspended.

Yes there is no notification to attend a disciplinary hearing just as no disciplinary hearing has taken place.

As already explained, your client is not being forced to resign and she has never been threatened with anything.

We would like to advise that there is completely no hostility towards Miss Gudza and there has never been any charge to her working conditions warranting a return to the claimed status quo. She is still lawfully employed by us.

We do not think the courts will dance to the tune of employees who agitate for termination of their contracts to avoid facing disciplinary action for offences they would have committed or those who resign because they have found alternative employment and then claim constructive dismissal.

We are equally puzzled by your demand for payment of damages as we believe that it is the prerogative of courts or other such appointed authorities to make such ruling not  you. We see this as an attempt to derail the due disciplinary process which you know is imminent and as such we will not get into negotiations of this nature with you or your client as she is still employed and is drawing her full salary from the company. In any event, even in such cases where damages are ordered by the courts, such an option lies entirely with the employer and not the employee. You may need to check again on what the position of the law is regarding damages.

Further, the law is equally clear that if any employee feels that the relationship with the employer has broken down, he/she can opt out of that relationship as the relationship is not one of slavery but two willing parties.

We hope our letter adequately addresses the issues that you have raised in your letter.”

On 23 May 2013, the employee through its lawyer’s then resigned by letter of the same date, it reads:

“Re:	RESIGNATION ERICA GUDZA

We refer to the above matter.

We write to you at the behest of our above client. Our client advises us that it has become evident as per your conduct that she cannot continue under your employment and hereby instructs us on her behalf to advise you that she has resigned from your employment with immediate effect.

The basis of her resignation is that you have created deplorable conditions that amount to a serious repudiation of her contract of employment as follows:

She has been denied access to her job even after being advised by the criminal court of her acquittal on 8 May 2013. This was also after you had instigated malicious prosecution against her.

No suspension letter was ever served on her even though you told her not to come to work after her acquittal, we are glad that you acknowledged the same. Her pleas to have her job back fell on deaf ears.

You called her for a hearing on Tuesday 14 May 2013 without a charge, the same which did not take place and you again verbally told her to go back home.

You made her to write a report after which you specifically told her that she either resigns or face a gruelling battle against the employer.

You have been niggard with the truth in that:

You lied that her contractual obligations are still intact when in actual fact you denied her access to her job; criminal procedures are different from labour matters and in event she was last summoned by the police before 8 May 2013.

You lied that she faced three charges of which she was cleared of one, when in actual fact she was arraigned before the courts on one charge, the same which she was acquitted.

The above will now however deter our client to pursue other legal avenues to seek justice in relation to her case as we are of the strong view that there was a serious breach of her rights as enshrined in the Labour Act.”

These are the facts which gave rise to a claim of constructive dismissal.

The arbitrator looked at the facts and came to the conclusion that there was no constructive dismissal she reasoned in terms of section 12B(3)(a) which reads as follows:

“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.”

She found that apart from proving that the employer deliberately made continued employment intolerable, the employee must also prove that there was no other way of resolving the issue except by resignation. She relied on the case of Old Mutual Group Scheme v Dreyer (1999) 20 ILJ 2030 (LAC) 2036 where it was stated that:

“An employee such as he appellant, must provide evidence to justify that the relationship has indeed become so intolerable that no reasonable option save for termination is available for her.”

She also reasoned that intolerable also had to be confined to things that the employer deliberately caused.

She analysed the facts and stated that in casu the appellant was asked to stop reporting for duty because the employer suspected that the appellant was involved in the fraud case and stated that it was investigating. The arbitrator concluded that the above two requirements had not been met.

I agree with the arbitrator. There was no misdirection on her part.

Section 12B (3)(a) provides that:

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.”

What did the employer do?

The facts show that it asked the appellant not to report for work. The appellant was at home. How could the employer have made continued employment intolerable for a person who is at home?

When she was asked to write a report, she was again told to return home and would be further advised on the next step. This is not conduct calculated to make continued employment intolerable. Even if it was to be accepted that the employer had told her to resign. This surely is not an act that one can say made the conditions of employment intolerable.

In the case of Jodaarn v Commission for Conciliation, Mediation and Arbitration & Ors 2012 ZALC 12 it was stated that:

“As such an appellant bears an initial onus for showing, on an objective standard, that the employer has rendered the employment relationship so intolerable that no other option is reasonably available to an employee, serve for termination of their relationship …………. constructive dismissal is not for the asking. With an employment relationship, considerable levels of irritation, frustration and tension inevitably occur over a long period. None of these problems suffice to justify constructive dismissal. An employee such as the appellant, must provide evidence to justify that the relationship has indeed become so intolerable that no reasonable option, save for termination is available … were not to do so, these courts would be flooded with constructive dismissals from employees who had some form of controversial engagement with their employer but which does not amount to constructive dismissal.”

The appellant also ought to have resigned immediately. See Astra Holdings v Kahwa SC 97-04 where the court held that an employee must resign immediately after the alleged intolerable act, the court observed as follows:

“If he (the employee) 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.”

The alleged threat of “resign or” is said to have occurred on 14 May 2013 and it was not until 23 May 2013 that the appellant resigned.

Further the appellant did not take all reasonable measures to remedy the intolerable conditions (assuming they existed). The measure included grievances handling procedures. In the case of Malindi v Strydom 1999 (4) BALR 412 it was held

“An employee claiming constructive dismissal should establish that he/she took steps to resolve the problem before abandoning employment.”

In casu the appellant appears to be desperate to leave employment that one would be justified if they were to agree with the employer that the appellant behaved like someone who wanted to avoid misconduct charges being brought against her.

I’m in respectful agreement with the arbitrator that no case for constructive dismissal was made. The discourse between the employer and the appellant’s lawyers does not show that the employer was deliberately making conditions unbearable or intolerable for the appellant.

An impression has also been created that in asking the appellant to stay at home, the employer acted somehow unlawfully. This is not the position as an employer has no obligation to provide work. His obligation is to pay the agreed remuneration. So if an employer told you to stay at home and he pays you, he is well within his rights and this cannot be said to create intolerable conditions.

The case of Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (SC) that I have been referred to does not support the appellant’s position. It is authority for the preposition 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.”

These are not the facts in casu, the employer has not breached his duty to the appellant to pay her salary and other benefits. As indicated, there is no duty to avail work for the employee, so the employer in casu has not repudiated the contract between it and the appellant.

The first ground of appeal which raises only issues of fact avers that the respondent unlawfully suspended the appellant. This is not factually correct the employer did not suspend the appellant. The appellant was told to remain at home until she was advised of the next step as the employer was investigating the possibility of charging her with an act of misconduct.

This court also cannot interfere with factual findings of a tribunal a quo unless it is demonstrated that the findings complained of are so outrageous in their defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at that conclusion. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC).

The second ground of appeal has not been substantiated.

I am thus unable to agree that the arbitrator’s decision was grossly unreasonable as such, I cannot disturb her findings of fact that the appellant had failed to prove constructive dismissal.

In the result, the appeal must fail with each party bearing its own costs.

Nyikadzino Simango & Associates, appellant’s legal practitioners

Mabundu Law Chambers, respondent’s legal practitioners