Innocent Matema v Bakels Zimbabwe (Pvt) Ltd

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/156/24
HELD AT HARARE 2 FEBRUARY 2024
CASE NO. LC/H/917/23
AND 8 APRIL 2024
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 2 FEBRUARY 2024
AND 8 APRIL 2024

In the matter between
INNOCENT MATEMA
And
BAKELS ZIMBABWE (PVT)LTD

BEFORE THE HONOURABLE MAKAMURE JUDGE.

FOR THE APPELLANT : W.MUSIKADI
FOR THE RESPONDENT: A MARARA

MAKAMURE J:

This is an appeal following a determination by a designated agent (DA) dismissing the appellant’s claim for constructive dismissal by the respondent.

The appellant was employed by the respondent initially as a demonstrator. He was later elevated to the position of sales representative. The record shows that on 12th December 2022 the respondent made a decision to retrench the appellant in terms of the following letter:

‘RE: NOTICE OF RETRENCHMENT

Notice is hereby given to retrench you on 3months’ notice and payment of the minimum retrenchment package which is 2weeks for every worked or 1 month pay for2yearrs worked, notice pay and leave pay for days accrued.

The reason for the retrenchment is due to low volumes in business such that we have to reduce the number of staff.


You will be required to sign a Memorandum of Agreement confirming amounts to be paid to you, once calculations have been confirmed by ZIMRA.

On behalf of Bakels Zimbabwe, I would like to thank you for service rendered and wishing you well in your future endeavours.

Kindly sign a duplicate of this letter for filing

...(Signed)'

The letter was copied to the NEC, Food and Allied Industries and the Retrenchment Board.

On 30th May 2023 parties appeared before this Court. An order by consent of the parties was issued as follows:

'IT IS ORDERED BY CONSENT THAT:

1. The application is granted in terms of the Draft, that is,

2. The application for Review be and is hereby granted.

3. The decision of the 1st Respondent terminating the Applicant’s employment be and is hereby set aside.

4. The 2nd Respondent be and is hereby ordered to reinstate the Applicant to his position without loss of benefits with effect from the date of the unlawful retrenchment. In the event that reinstatement is no longer an option 2nd Respondent pays the Applicant damages in lieu of reinstatement as agreed between the parties. Should parties fail to agree either party is free to approach the Court for quantification.

5. The 2nd Respondent pays the costs of suit on the ordinary scale. '


The respondent opted to reinstate and appellant went back to work. On 7 June 2023 a meeting was held where the process to retrench him (appellant) was (discussed. During the meeting he was told (by Mr Mugadza) that:

> ‘You are still at work until we can start the process of retrenchment again. Please note that this is not on personal grounds but on company grounds.’

The appellant advised his legal practitioners about the meeting of 7th June 2023. The legal practitioners on 13th June 2023 wrote respondent and, among other things, protested about the proposed retrenchment suggesting instead that an award of damages should reinstatement be no longer an option, as ordered by the Court would be the right course of action to take.

The respondent did not respond to the legal practitioners’ letter of 13th June. The legal practitioners made a follow up through a letter dated 26 June 2023. On 28th June 2023 the respondent through its General Manager (GM), Ms E Mpala, wrote the appellant advising him that he had been transferred to Bulawayo and further that he was expected to start work in Bulawayo on 12th July 2023. On 5 July 2023 the appellant sent a grievance by email, titled “Aggrieved Retrenched Employee by Bakels Zimbabwe” to one Patrick Gloggner (Gloggner). In the email he indicated that he had written to the respondent ‘s MD who is based in South Africa. The appellant registered his complaint about how the General Manager and the accountant were ill-treating him and how he had been unlawfully retrenched resulting with him seeking recourse from the courts. He expressed reservations that the same management that was frustrating him was asked by the MD to look into his case. Nothing further seems to have happened with respect to this grievance.

On 10th July 2023 the appellant resigned from the respondent’s employ alleging that the respondent was making the working environment intolerable in that: it had not paid him backpay in terms of the Court Order; the respondent was not allocating him any work and that the respondent had not allowed him to service clients which he used to service before the unlawful retrenchment; that two of his colleagues had been promoted and the effect of those promotions were to make his position as Sales Representative redundant; that it had been made clear that he would be retrenched again; that the move to transfer him was made without his input as he was not consulted; he was not provided with work uniforms although all the other employees in his category had uniforms purchased for them; he was not given airtime; his June salary was not paid in terms of the contract between them; the respondent had refused or neglected to service the company motor vehicle which he was using. The appellant stated that in view of the issues which pointed out in the resignation letter, the respondent had made the working environment intolerable and no longer wanted his services as it was bent on retrenching him. On 14th July 2023 the appellant’s legal practitioners wrote a designated agent and registered a case of unfair dismissal as defined in s12B(3) of the Labour Act Chapter 28:01 (the Act).

The issues for determination by the DA as agreed between the parties were: (i) Whether or not the Claimant was constructively dismissed and (ii) The appropriate remedy. The parties appeared before and were heard by the DA. The appellant maintained that there was constructive dismissal. The respondent vehemently denied having made the workplace intolerable thereby forcing the appellant to resign and that this was constructive dismissal. The respondent denied all allegations made against. Specifically it was the position of the respondent that it had not promoted the appellant’s two colleagues but that they were performing extra duties in addition to what they were already doing; that the appellant was not denied access to the clients he used to service; that the decision to transfer him to Bulawayo was made because there was no longer any work for him to do in Harare and that working in Bulawayo was better than having him retrenched. Besides, it was submitted, it is the employer’s right to transfer an employee from one place to another as the employer is the one that knows where an employee’s services are best needed. The transfer was therefore not an attempt to frustrate or discharge him. On the question of retrenchment, it was submitted that the respondent was bound to comply with provisions of the law and that this included starting the (retrenchment) process again. The following are some of the authorities relied upon in support of the parties’ respective cases- for the appellant: **Steel v Shanta Construction(Pty) Ltd and Others 1973 (2) SA 537; R v County Council of Norfolk (189) 65 LT NS 222; ZIFA v Custen Pickwell & Ors HH-12-21; AstraHoldins (Private) Limited v Kahwa SC97/04; Mbatha v National Foods (Private) Limited SC 149/20.**

And for the respondent: **Christopher Samson v Windmill (Private) Limited SC7/15; Hama v National Railways of Zimbabwe 1996 (1) ZLR 6654 (S).**

After considering the submissions placed before him, the Designated Agent found that the appellant had not been constructively dismissed. The DA considered the definition and requirements of constructive dismissal. The DA articulated three requirements for constructive dismissal to be established and that if all three of them have not been proved, constructive dismissal has not been proved. The requirements are (i) that the employee must have terminated the contract of employment; (ii) the reason for termination of the contract was that continued employment had become intolerable; and (iii) the employer had made the employment intolerable. The DA found that the appellant had resigned. In trying to establish whether or not it was the conduct of the employer which had caused the resignation, the DA found that the appellant had raised a grievance regarding the treatment he was getting from the respondent’s General Manager Evelyn Mpala and its accountant, Lovemore Soko. Regarding that grievance, it was the DA’s finding that the appellant did not comply with the company’s grievance handling policy. The DA found this to be unacceptable on the part of the appellant. The DA found the conduct of the General Manager in running the respondent, particularly ensuring that targets were met, to be above board and not targeted at forcing the appellant to resign. While there was no work for the appellant in Harare the DA found that there was work for him in Bulawayo hence the transfer. The DA found that the appellant could not under the circumstances complain of not being given any work.

As indicated above the DA, after considering all the submissions and evidence before him, found that the appellant had resigned; that he had not been constructively dismissed and dismissed the appellant’s claim. The DA relied on the case law which included the case of **Danai Guruva v Traffic Safety Council of Zimbabwe SC30/08** as authority for the position that an employer can transfer employees to other places within its organization and **Astra Holdings (Pvt) Ltd v Peggy Kahwa SC97/04** for the requirements of constructive dismissal.

Before this Court the parties made submissions and also incorporated submissions that they made before the DA. It appears common cause that the appellant was aggrieved by the treatment which he says he got from the respondent’s management mainly the General Manager and the Accountant. His grief with the DA’s finding is contained in his grounds of appeal that is that: the DA was wrong in finding that the appellant ought to have exhausted domestic remedies before resorting to resignation; the DA grossly erred and seriously misdirected himself in making a finding that the appellant had voluntarily resigned considering the events which occurred between the 5th of June 2023 and 30th June 2023 which events had a negative impact on the appellant; the DA erred and grossly misdirected himself by failing to find that the respondent made his continued employment intolerable considering that he was denied access to his clients, he was paid his salary in Zimbabwe dollars which was not the equivalent of what parties agreed to in the contract signed in 2014 and was denominated in United States Dollars; the respondent made a unilateral decision to transfer him to Bulawayo without consulting him; respondent unilaterally and unlawfully deducted his leave pay, refused to pay him his back pay and did not provide him with work uniforms as it did to others; the DA erred and contradicted himself by finding that the appellant did not terminate his contract immediately after the intolerable conditions and yet the DA also found that the appellant ought to have exhausted domestic remedies.

The record shows that after the order of reinstatement dated 30th May 2023 the appellant returned to work. He says he was not given the back pay which he was entitled to, there is however no indication that he made a follow up the Court order with the respondent. He was not happy with the manner that the GM was handling his issue. That in fact constituted a grievance. It is not clear whether he made an approach to the GM to put across his concerns so that at least the GM was aware of this. It seems that he found it necessary to contact the superiors who are based in South Africa in a quest to have his concerns addressed. On the question of things like cell phone, work uniforms and servicing of the motor vehicle that he was using, it is not clear as to how he handled this at the work place before even alerting his legal practitioners. On the question of access to his clients, the respondent answered this firstly by asking that he (the appellant) moved in the company of a colleague as suggested by the respondent and the appellant decided to be in the company of a different colleague on the advice of his legal practitioners. Then there was the transfer to Bulawayo. The importance of family particularly where young children are concerned can never be ignored. This I believe is an issue which he could have discussed with his employers locally before trying to find a solution from the superiors who are based outside the country.

The appellant’s case appears to have been triggered by the unlawful retrenchment. That was resolved by the courts. He returned work. He says he was not given any work, there is proof that he raised this with his superiors and he was allocated to move around with one Timothy Nyarufuro but he chose to move around with one Michael Chipembere. It is I believe along the same work lines that the transfer to Bulawayo was made. Ten days after he had been advised that he was to go to Bulawayo he tendered his resignation. He alleges that this was not a voluntary resignation but that it was a case of constructive dismissal. An intolerable working environment is defined in the Labour Act Chapter 28:01 as follows:

‘12B Dismissal

(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed—

(a)…

3) An employee is deemed to have been unfairly dismissed—

(a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;’

In Astra Holdings (Private) Limited v Peggy Kahwa (above)the Supreme Court stated that:

‘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 d – f 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.”

In Danai Guruvav Traffic Safety Council of Zimbabwe SC 30/08 the Supreme Court stated that:

‘It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown.

Good cause in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.

The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant’s objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services for the employer where ever such services are required unless the employment contract stipulates that he is to be employed and remain at a specific place only.’


In *casu*, the appellant asserts that he did not resign voluntarily. However, it is not clear at what point he was forced to make the decision to resign. Was it soon after the Court had made the order for his reinstatement? Was it after the meeting when Mugadza told him that retrenchment was being considered? Was it when he was told about the transfer to Bulawayo? As indicated earlier, on issues like airtime, service of motor vehicle, he ought to have raised these with the employer like he did with the issue of there being no work for him to do. The DA stated in his determination that the appellant did not exhaust domestic remedies. My understanding of the DA’s position with respect to exhaustion of domestic remedies does not contradict his other findings. My understanding of what the DA was saying is that resignation should be the last resort where there are other ways of resolving issues at the workplace. What this means is that while the appellant had issues at the workplace, the situation did not force him to immediately resign or give notice to do so as envisaged in the **Western Excavating** case quoted with approval in the **Astra Holdings Case (above)**. Thus, while he has proved that the employer caused him hardship, such hardship did not cause him to leave employment immediately. The appellant therefore has not proved on a balance of probabilities that the resignation was immediate.

On the question of transfer to Bulawayo, it is indeed the employee’s right to be heard before a transfer is made. **Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S).** I am not sure whether the appellant engaged or tried to engage the GM when the decision to transfer him to Bulawayo was made. What he did was to contact persons in South Africa who then referred him back to the GM. In his communication with Gloggner, he expressed reservations on the ability of the management in Zimbabwe to handle his grievance. It is not known as to whether or not he actually engaged them in order to confirm their position or his fears. Even if he had been heard, it would still have remained the employer’s prerogative to either transfer him or not.


What this means is that the appellant has not made a case for constructive dismissal, on a balance of probabilities. I find under the circumstances that there is no merit in all the grounds of appeal. I find no error on the part of the Designated Agent. The appeal fails.

In view of the foregoing it is ordered that:

1. The appeal be and is hereby dismissed.

2. Each party bears its own costs.

CHIMUKA MAFUNGA, APPELLANT’S LEGAL PRACTITIONERS.

MUTAMANGIRA&ASSOCIATES, RESPONDENT’S LEGAL PRACTITIONERS.


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