Letwin Sigauke v Broadcasting Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/747/2016
HARARE, 7 OCTOBER 2016 &
CASE NO LC/H/LRA/168/2016
18 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/747/2016

HARARE, 7 OCTOBER 2016 &			     CASE NO LC/H/LRA/168/2016

18 NOVEMBER 2016

In the matter between

LETWIN SIGAUKE								APPLICANT

Versus

BROADCASTING AUTHORITY OF					RESPONDENT

ZIMBABWE

Before the Honourable Muchawa J

The Applicant in Person

For the Respondent	S Mabana (Legal Practitioner)

MUCHAWA J:

This is an application for confirmation of a ruling made by the applicant in a matter between the respondent and its former employee, one Tendai Fortune Chiremba (hereinafter referred to as the claimant.)

The application is made in terms of section 93 (5a) and (5b) of the Labour Act [Chapter 28:01] (“the Act”).

The factual background to the matter is common cause. The claimant was employed by the respondent as an internal auditor on a five year fixed term contract which was to end on 30 September 2015.

On 31 August 2015, the claimant resigned with immediate effect. The letter of resignation was worded as follows:

“I am writing to inform you that I am resigning from my post of internal auditor effectively today 31 August 2015.

My benefits can be used to cover the one month remaining on my contract which expires on 31 September 2015. Please inform me on the level of benefits I am entitled to according to my contract.”

It is a fact that the claimant resigned to avoid disciplinary action as he had received notification of a hearing scheduled for 2 September 2015. The charges were an act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his employment and theft or alternatively fraud. It was alleged that the claimant failed to account for various amounts of money claimed from and paid to him by the respondent as gym fees and school fees. It was further alleged that he had converted to his own use funds advanced for membership subscriptions to professional institutions. Another allegation was that the appellant had attempted to convert ZIB Insurance excess payable to the respondent, to his own use.

Following the resignation, the respondent paid the claimant his salary for August, cash in lieu of leave and pro rata bonus as terminal benefits.

Over and above these terminal benefits, the claimant sought to claim two further benefits as contractual benefits. The first was that he was entitled to retain the motor vehicle allocated to him as part of his terminal benefits. The second was a claim for gratuity based on clause 6 of the employment contract.

The applicant, in the ruling before me, dismissed the claim for the motor vehicle after finding that at the date of termination of employment, the motor vehicle in question was only about two years old so it was not subject for disposal as the Motor Vehicle Policy provided that motor vehicles that are five years old are the ones considered for disposal.

The gratuity claim of $18 000-00 was awarded less cash in lieu of thirty days subject to taxation. The gratuity awarded is $16 148-10 subject to taxation.

This is the ruling and order sought to be confirmed.

Whereas the respondent accepts the ruling in respect to the motor vehicle, the gratuity award is opposed.

It is argued that the award of gratuity is bad at law as the condition precedent to the payment of gratuity, that is successful completion of the contract of employment, was not met.

I turn to look at the relevant provisions of the contract. Clause 6.1 entitles an employee to gratuity as a lump sum calculated on the basis of the current salary at the time of termination at 25% of total gross basic annual salary. Such gratuity is subject to taxation.

Clause 7.1 states the circumstances under which gratuity is payable. In particular clause 7.1.1 states that employment should have been successfully completed.

It seems to me that should have been the question which the applicant should have considered.

It is common cause that the claimant prematurely terminated his contract of employment. The applicant read into the letter of resignation that the claimant had requested that the respondent deduct from his accrued 127 leave days the remaining thirty days which he was willing to forfeit. It is concluded that by not responding to this request the respondent accepted the request for a waiver of serving until the end of the contract and that the claimant served until the end of the contract and therefore completed his contract successfully.

The respondent referred me to clause 9.5 of the contract of employment to dispel the claim of the claimant having accrued 127 annual leave days. This states that total accumulated vacation leave going beyond ninety days shall be forfeited.

I was further referred to a letter dated 14 October 2015 in which the respondent’s chief executive officer wrote and categorically stated that the claimant was not entitled to the motor vehicle and gratuity. There was therefore no factual basis on which the applicant could hold that the non-response to the request for a waiver meant that the respondent had accepted it.

In any event if one was to subtract thirty days from the allegedly accrued one hundred and twenty-seven days, one does not remain with the ninety days for which the claimant was already paid.

The applicant claims to have based her ruling on section 12 (7) of the Act. This section provides that parties to a contract of employment may, by mutual agreement, waive the right to notice. In casu no such mutual agreement was established. Instead the respondent did oppose this request.

There is in fact a strong presumption against waiver in our law and the party asserting waiver has the onus to prove it. Chidziva & Ors v Zimbabwe Iron & Steel Company 1997 (2) ZLR 368 (S) and Agribank Zimbabwe Limited v Machingaifa & Anor SC 61-07. The applicant therefore acted contrary to the rule of law in presuming waiver in the circumstances.

The very contract of employment in issue also expressly excludes a presumption of waiver in clause 16 and requests that any variation of the agreement shall be reduced to writing and be duly signed by both parties or their authorized representatives.

Where therefore does this leave us? It means the contract between the parties had to run the full five year term in order to have been successfully completed or that the parties should have agreed in writing to altering the term to one month short. Both alternatives did not happen.

When the claimant resigned with effect from 31 August 2015, the legal effect of a resignation kicked in. A resignation does not require a response or acceptance to be valid. It is a unilateral act and once notice of resignation is given, it is final. See Muzengi v Standard Chartered Bank & Anor 2000 (2) ZLR 137 and Bishop Jakazi & Anor v Anglican Church of the Province of Central Africa SC 10/13.

I find therefore that the applicant erred both on the law and the facts on the issue of gratuity whereas her ruling on the issue of the motor vehicle cannot be impugned.

Accordingly the application for confirmation of the ruling and order is partly upheld and partly confirmed on the following amended terms:

The claims for the motor vehicle and gratuity being without merit, they be and are hereby dismissed.

T H Chitapi & Associates, respondent’s legal practitioners