Jonathan Goosen v Body Active Gym

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/677/2013
HARARE ON 29th OCTOBER, 2013
CASE NO. LC/H/646/2013
AND 6 DECEMBER, 2013
JUDGMENT NO. LC/H/677/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/677/2013

HARARE ON 29th OCTOBER, 2013			CASE NO. LC/H/646/2013

AND 6 DECEMBER, 2013

In the matter between

JONATHAN GOOSEN	     			–	Appellant

And

BODY ACTIVE GYM					–	Respondent

Before The Honourable G. Mhuri, J.

The Honourable R. Manyangadze, J.

For the Appellant	:	In Person

For the Respondent	:	Mr P. Charamba (Legal Practitioner)

MANYANGADZE, J.

At the end of hearing the parties arguments we dismissed the appeal in its entirety with costs, and indicated that our reasons would follow in due course. These are they.

This is an appeal against an arbitral award in which the arbitrator upheld the mutual termination of the contract of employment between the Appellant and the Respondent.

The brief facts of the matter are that the Appellant was employed by the Respondent as its General Manager, from March 2010 to February 2013.  The relationship became strained as accusations of insubordination and unsatisfactory performance of duties emerged.  The two parties engaged each other with a view to seeking an amicable resolution of the labour issues between them.

On 6 February, 2013, the Appellant wrote to the Respondent through the Zimbabwe Federation of Trade Unions (Z.F.T.U.), proposing a mutual termination of the contract of employment.  In that letter, Appellant proposed, in addition to statutory payments, negotiable payments of damages for loss of employment, life membership, medical aid cover, fuel, air time and vehicle allowances.

The Respondent, in a response to Z.F.T.U. dated 7 February 2013, turned down the Appellant’s proposal.

The parties continued to engage until they signed an agreement on 8 February 2013.  This agreement is in the form of a letter addressed to the appellant, captioned TERMINATION OF EMPLOYMENT CONTRACT.

In that letter Respondent offered Appellant payment reflecting the following breakdown:

Notice pay 	US$54 500.00

Days worked	US$   286.00

US$54 786.00

Less 		US$   250.00 owed to Tapiwa

US$54 536.00

The letter was signed by the Appellant, the Respondent, a Z.F.T.U. representative and a witness.  It had these concluding words:

“Body Active Gym management does not condemn you in any way and there (sic) we do not expect you to condemn us or our operations.”

After signing the letter and accepting payment, Appellant lodged a complaint of unfair labour practice with the Labour Office.  The dispute ended up at arbitration, and eventually at the Labour Court.

The Appellant’s grounds of appeal are stated as:

The learned arbitrator erred in dismissing Appellant’s claim for lack of substance.

The Arbitrator also misdirected himself in holding that Appellant was lawfully dismissed because no disciplinary hearing was conducted to that effect.

Further, the parties did not agree to a mutual termination but rather Respondent dismissed Appellant unlawfully.

The first ground of appeal is too broad and general.  It does not specify in what respect Appellant’s claim was dismissed for lack of substance.

The second ground of appeal incorrectly avers that the Arbitrator held that Appellant was lawfully dismissed.  It was not the Arbitrator’s finding that Appellant was dismissed from employment.  The Arbitrator found that there was mutual termination of the employment contract based on the letter of 8 February 2013, which both parties signed.  The Appellant is thus erroneously attributing to the Arbitrator a finding that he did not make.

The third ground of appeal is attacking a factual finding made by the Arbitrator, whether or not the parties agreed to a mutual termination of the contract of employment.  It is this finding which is in fact the crux of the matter.

The Arbitrator focused on the letter of 8 February 2013.  The Arbitrator, after analyzing the document and the circumstances surrounding its signature, concluded:

“There is nothing to suggest that claimant entered into this blindly or out of duress.  He can therefore not resile from his agreement of mutual separation.  There is nothing to show that claimant was unlawfully dismissed.  Parties agreed to mutually separate and a package was duly paid.”

Indeed, the document has all the elements, characteristics, essential features of a termination of contract agreement.  As correctly argued by the Respondent in its heads of argument;

“There is no other interpretation that can be given to Annexure “E” other than that it is an agreement to terminate the contract of employment.”

The Appellant can therefore not seek to resile from an agreement (for the termination of employment and the terms of such termination) which he voluntarily entered into.  The only way he could resile from it is if he produced evidence of fraud, coercion or duress.  There was none.  The case cited by Respondent, of Mbisva v Rainbow Tourism Group Limited SC/09, at p. 12, aptly sums up Appellant’s situation:

“It may very well be true that he (employee) was under financial pressure which forced him to accept a deal that he did not like.  But the fact remains that he need not have accepted the deal.  It is not like his will was overborne by the appellant (employer) to the extent that he had no choice in the matter.  He had a choice.  He could have rejected the whole deal and pursue other remedies.  The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The Appellant signed the termination deal with his eyes wide open.  He even had the benefit of advice from his trade union representatives, who also signed the agreement.  In the circumstances, the arbitrator’s findings of fact, that an agreement of mutual termination was signed, and that it was signed voluntarily, cannot be faulted.  There is no basis on which to interfere with his discretion.  The appeal is devoid of merit.  In the result, it is ordered that:

The appeal be and is hereby dismissed in its entirety with costs.

Appellant In Person.

Charamba and Partners, Representing the Respondent.

Mhuri J.		………………………………………………………………..

Manyangadze J.	………………………………………………………………..