Meikles Limited v Onias Makamba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/445/16
HELD AT HARARE
12 MAY 2016
CASE NO
JUDGMENT NO LC/H/445/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/445/16

HELD AT HARARE 12 MAY 2016				CASE NO LC/H/677/15

& 22 JULY 2016

In the matter between:

MEIKLES LIMITED					Appellant

And

ONIAS MAKAMBA					Respondent

Before The Honourable Maxwell, J

For Appellant			M Tshuma (Legal Practitioner)

For Respondent		T Magwaliba (Legal Practitioner)

MAXWELL J:

This is an appeal against an arbitral award in favour of respondent.  Respondent was the appellant’s group financial director.  Respondent went on leave and whilst on leave, his leave was extended as there were some investigations that were underway in the Chivhu project.  Respondent later received a letter terminating his contract of employment on notice.  Aggrieved, respondent referred the matter to conciliation.  After settlement failed the matter was referred to arbitration.

The arbitrator ruled that the termination of respondent’s contract was procedurally and substantively unlawful.  He ordered the reinstatement of respondent without loss of salary and benefits with effect from the date of unlawful termination.  In the event that reinstatement is no longer tenable parties were to negotiate and mutually agree on damages in lieu of reinstatement failing which either party could approach the arbitrator for quantification.  Appellant was aggrieved and approached this court on appeal.  The grounds of appeal are mainly attacking factual findings.  The main issue in contention is whether or not the arbitrator was correct to find that the termination of respondent’s contract of employment was procedurally and substantively unlawful.  Respondent submitted that the arbitrator’s finding cannot be faulted.

On 23 November 2014 John Moxon wrote to the respondent advising him that he should extend his leave until matters concerning Chivhu are concluded.  On 16 April 2015 appellant’s lawyers wrote to respondent advising him of the appellant’s decision to terminate his contract of employment on notice in terms of section 12 (4) of the Labour Act [Chapter 28:01].  In the letter, appellant’s lawyers stated

“Our client informs us that it has lost trust and confidence in you.  The said trust and confidence are essential for the nature of the post you hold and the duties you are expected to perform.”

The arbitrator states in his analysis

“It is my view that the employer can only lose trust when an employee is not performing up to the expected standards.  Surely one cannot be lose (sic) trust and confidence when the employee is performing up to the expected standards.  I therefore conclude that terminating the employee on the provisions of section 12 (4) is not applicable under these circumstances.”

The arbitrator made reference to the case of P G Industries (Pvt) Ltd v Nkululeko Mabhena SC 44/03.  The arbitrator’s analysis cannot be faulted.  As was in the P G Industries case (supra).  Appellant was casting aspersions against the reputation of the respondent.  In such circumstances a procedure for termination should give him opportunity to defend himself against accusations of not being trustworthy.  It therefore follows that appellant should have followed disciplinary procedures which would have accorded the respondent the right to be heard in defence of his reputation.  This is more so since the loss of trust and confidence followed an investigation.

It was argued for appellant that the contract of employment was terminated in terms of the common law.  It is trite that an employer has the right to terminate the employment contract on notice in no fault situations.  See Getrude Kwaramba v Bain Industries (Pvt) Ltd SC 39/01.  However this court cannot ignore the circumstances leading to the giving of the notice and what is stated in the notice.  The letter of 23 November 2014 states that there was suspected “very poor project implementation.”  Respondent was advised to continue on holiday “until matters concerning Chivhu are concluded.”  Clearly an act of misconduct was suspected.  For termination in such circumstances to be termed no fault will be a misnomer.  Once allegations of possible misconduct are made, they ought to be cleared before one can then claim a no fault termination.  This is more so in circumstances as in this case where following investigations on employer claims to have lost trust and confidence in the employee.  In my view the employee is entitled to be advised of what has caused the employer to lose trust and confidence.  The employee is entitled to give his side of the story in response.  Such a process may require disciplinary proceedings.  I therefore find that the appellant erred in terminating respondent’s contract on notice in circumstances where it was casting aspersions on his reputation.

I find no reason to interfere with the arbitrator’s award.  Accordingly the following order is appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Chinamasa, Mudimu & Maguranyanga, appellant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners