Janet Moyo v Irvines Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/446/2016
HARARE, 13 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/446/2016

HARARE, 13 JUNE 2016  				     CASE NO. LC/H/452/15

AND  22 JULY 2016

In the matter between:-

JANET MOYO							Appellant

And

IRVINES ZIMBABWE (PVT) LTD				Respondent

Before Honourable P. Muzofa, Judge

Appellant			In person

For Respondent		W. Mapfuvise (Human Resources Manager)

MUZOFA, J:

The appellant was employed by the respondent until the 16th of January 2015 when he was dismissed from employment following a disciplinary hearing.

The background to this case is not in dispute.  Appellant was employed as a section manager within the Commercial Layers Division.  Prior to her transfer to that section, appellant worked at the Hatchery as an assistant manager.

While working at the Hatchery she was charged for misconduct and found liable.  She was issued with a final written warning coupled with a transfer to the Commercial Layers Division.  The warning was valid for twelve months.  This was in April 2014.

Part of the consequences of the transfer was vacating the company house that was specifically for managers in the Hatchery.  Appellant opted to stay in what is called the village, a compound comprising of houses belonging to appellant.

While at the Commercial Layers Division it was alleged that in January 2015 she committed acts of misconduct, in  that she failed to comply with the key control instructions.  She gave some contractors keys without following the proper procedure.

Secondly it was alleged she was negligent and failed to monitor wood shavings leading to them getting wet about three tonnes got wet.

She was charged for violating the National Code Statutory Instrument 15 of 2006 for habitual and substantial neglect of duty and conduct or omission inconsistent with the fulfillment of her contract.

During the disciplinary hearing appellant admitted that she failed to comply with the set down procedure for handling keys.  In respect of the wood shavings she said the water seeped under the door into the place the wood shavings were stored.  There was nothing she could do about the situation.

She was found liable.  The final written warning which was still live was taken into consideration, leading to her dismissal.

Dissatisfied by the outcome she referred the matter to a Labour Officer for conciliation.  When conciliation failed the matter was referred to arbitration.

The arbitrator dismissed the appellant’s claim.  She then appealed to this court.

The grounds of appeal are far from being concise.  The appellant impugns the arbitrator’s decision in that she failed to appreciate the law in that there was an unfair dismissal due to constructive dismissal and respondent repudiated the contract of employment.  The third ground seems to raise the issue that appellant was dismissed under unclear circumstances.

Appellant therefore seeks this court to order that she be reinstated without loss of salary or benefits or be paid damages in lieu of reinstatement.

Before the court appellant failed to substantiate the grounds of appeal.  Clearly the grounds of appeal were drafted for her but she failed to appreciate them.

Constructive dismissal is the termination of the contract of employment by the employee with or without notice because the employer made continued employment intolerable for the employee see John Grogan, Workplace Law 8th Edition, Juta at page 112.

In this case the appellant did not resign.  The termination of contract was a result of the disciplinary proceedings.  It was the employer who eventually dismissed the appellant.

Constructive dismissal is not available to an employee dismissed by the employer.  In this case the appellant should have resigned as soon as she perceived certain conduct by the respondent that made continuation with employment intolerable.  See Astra Holdings (Pvt) Ltd v Kahwa Sc 97/04 for the requirements to be satisfied by an employee.

To that extent the issues raised by appellant that she was not provided with a motor bike when other managers had such would be irrelevant.

The first ground of appeal is therefore dismissed.

The second ground of appeal is that the respondent repudiated the contract by its conduct.

It is difficult to appreciate the appellant’s ground of appeal.  It was not even substantiated.  Repudiation as it relates to constructive dismissal can only be a successful defence where the employee resigned.

As stated before there was no resignation in this case.  The appellant cannot therefore point to respondent’s conduct that amounts to repudiation.  There is no merit in the second ground of appeal.

The third ground of appeal is set out in the following terms,

“The arbitrator gravely misdirected himself by falling to note and considers that respondent, by virtue of the misrepresentation was in a fatal breach of the procedural provisions of a fair dismissal.  The respondent dismissed the appellant under unclear circumstances which is in contravening (sic) of the Labour Laws read together with ILO Convention 158 (1982) and Recommendation 166 …”

I was not referred to the alleged misrepresentation by the respondent.  Appellant failed to elucidate why she believes she was discharged under unclear circumstances.

Infact appellant was discharged in very transparent circumstances.

The record of proceedings shows that on 21 January 2015 the appellant attended a disciplinary hearing.  She was facing two charges, she pleaded guilty to one of them.  She was found guilty on both charges and dismissed.

On 22 January 2015 formal communication by letter was written to appellant dismissing her from employment.  The letter summarized the charges, the evidence and the findings.

I am clear in my mind that appellant is aware why she was dismissed.  The ground of appeal is just an attempt to flog a dead horse, certainly it would not arise.

Appellant also raised issue that an audit was conducted for a period when she was on leave.  This allegation was irrelevant to the proceedings before the court.  The charges related to acts she committed, not assumptions while on leave.  The acts in relation to keys and the wood shavings had nothing to do with an audit.

The third ground of appeal is meritless.

The appeal is accordingly dismissed.

The arbitration award be and is hereby upheld in its entirety.