George Munhupedzi v Telone

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/19/2013
HELD IN HARARE, OCTOBER 5, 2012
CASE NO. LC/H/462/10
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/19/2013

HELD IN HARARE, OCTOBER 5, 2012		CASE NO. LC/H/462/10

In the Matter Between

GEORGE MUNHUPEDZI				APPLICANT

And

TELONE					       	RESPONDENT

Before The Honourable E. Makamure         : President

For The Applicant     		: Mr A. Demo (Legal Practitioner)

For The Respondent  		: Mr J. Dondo (Legal Practitioner)

MAKAMURE E.,

This is an application for leave to appeal to the Supreme Court.  The record was erroneously kept in the registry instead of it being referred for consideration of judgment.  Hence while the matter was heard in October 2012, the judgment is only being considered in January 2013.  The confusion regarding the movement of the record is regretted.

The applicant was dismissed from the respondent’s employ.  An arbitrator confirmed the dismissal.  This Court confirmed the Arbitrator’s determination on the basis that:

The employer did not create an intolerable working environment leading to the applicant resignation.

The applicant voluntarily resigned from work.

Section 12B(3)(a) provides:

“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”.

The facts of the matter are that the applicant was arrested and detained by police on allegations of theft from employer.  When he was released from police custody he was told of the impending misconduct or alternatively he could resign.  He chose to resign.  He could have chosen to stay on the job and face the misconduct charges.

The fact that he was placed between a ‘rock and a hard place’ so to speak, cannot be blamed on the employer.  There were allegations of theft against him and there were likely to be going disciplinary proceedings against him.  That was the law taking its course.  If an employee is advised that disciplinary proceedings will be held against them, it does not translate to an intolerable working environment.  An intolerable working environment arises when the employer deliberately and for unknown reasons decides to frustrate the employee’s ability to work with a degree of peace of mind.  However, where there is a likelihood of misconduct charges being levelled against a person, surely the law must be allowed to take its course.  Under those circumstances an employee cannot allege that the employer is making the work place environment intolerable.  There are consequences to every conduct and also attendant obligations to be carried out.  Relevant authorities were duly considered when the appeal matter was heard.  I hold the view that a different Court faced with the same facts will reach the same conclusion which this Court arrived at.  In the circumstances therefore I find that there is no merit in the application.

Accordingly, it is ordered that the application be and is hereby dismissed.

Chihambakwe Mulizwa and Partners, Legal Practitioners for the Applicant.

Dondo and Partners, Legal Practitioners for the Respondent.