Proton Bakeries v Joseph Nduna

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/326/14
HARARE, 13TH MAY, 2014
CASE NO. LC/H/892/13
AND 6th JUNE, 2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/326/14

HARARE, 13TH MAY, 2014    		                     CASE NO. LC/H/892/13

AND 6th JUNE, 2014

In the matter between:-

PROTON BAKERIES			-	Appellant

And

JOSEPH NDUNA				-	Respondent

Before Honourable B.S. Chidziva,  Judge

For Appellant 	-	Advocate Matinenga

For Respondents	-	Mr. T. Chiturumani (Legal Practitioner)

CHIDZIVA J.

This is an appeal against the arbitral award of Honourable Mrs K. Segula that was handed down on the 10th of October 2013. The award stated as follows;

“After considering the facts, law and submissions by the parties, I hereby make the following orders –

That the Respondent be and is hereby ordered to pay claimant wages and benefits for 24 months amounting to $96 860.00……………”

The relevant facts which are common cause are that the Respondent was offered the job post of Sales Manager on the 15th of March 2012. This was after he had been interviewed on the 2nd of March 2012. The (contract) letter indicated that if he had any queries regarding any of the conditions laid down in the letter of appointment the Appellant should not hesitate to contact the Directors who would clarify the issues. The letter also invited the Respondent to sign in acceptance if he was satisfied with the terms and conditions therein. All communication pertaining to the negotiations of the terms of the contract were being done through Appellants Agent, CV People Africa (Pvt) Ltd. On the 27th of March 2012 the Respondent collected the letter from CV People Africa (Pvt) Ltd. On the 28th of March 2012

he wrote to Proton inquiring about the type of the vehicle he was to use and accommodation. On the 2nd of April 2012 the Respondent signed the acceptance letter and submitted it to CV People Africa (Pvt) Ltd on the same day. The Appellant withdrew the offer of employment and the Respondent became aware of it on the 3rd of April 2012.

The Appellant’s grounds of appeal are that;

The arbitrator erred at law in assuming jurisdiction in this matter

The arbitrator erred at law in finding that Respondent had accepted Appellant’s offer of employment, more particularly in that -.

She erred in finding that Respondent had accepted Appellant’s offer of employment despite such offer having been withdrawn before acceptance

She erred in finding that Respondent’s e-mail of 28th March 2012 was a mere inquiry during the course of the negotiation and not a counter offer.

She erred in finding that despite Respondent’s e-mail of 28th March 2012, has acceptance of Appellant’s offer dated 2nd April 2012 was valid acceptance

The Appellant therefore prayed that the arbitrator’s award be set aside.

The Respondent in response told the Court that;

The matter was properly referred to the arbitrator by the Labour Officer after the matter could not be resolved at conciliation

Respondent accepted the contract of employment  before it was withdrawn

The e-mail of 28th March was not a counter offer

Respondent validly accepted the Appellant’s offer

An award of 24 months is not irrational and is in line with the common practice of our courts especially in cases where there is unlawful termination of contract of employment

The Respondent therefore prayed for the dismissal of the Appellant’s appeal.

The issues to be decided are;

Whether or not there was a valid contract of employment between Appellant and Respondent

The appropriate remedy in the event that the court finds that there was a valid contract

Whether or not the arbitrator properly assumed jurisdiction in this matter.

Munyaradzi Gwisai in his book “Labour and Employment Law in Zimbabwe – relations of work under Neo-Colonial Capitalism” at page 51 described a contract of employment as follows;

“A contract of employment comes into existence when one person, the employee, enters into an agreement with another, the employer, to render personal service to, and under the control of the employer in return of remuneration”

The Respondent in this matter signed the contract on the 2nd of April 2012. The Appellant communicated the withdrawal of the offer on the 3rd of April 2012. Appellant also agrees that this communication of withdrawal was only done on the 3rd of April 2012.

It is a trite principle of law that a withdrawal of an offer only becomes effective upon communication to the other party. This was clearly explained in the case of Yates vs. Dalton 1938 EDL 177 when the Court stated that;

“Withdrawal of an offer becomes effective only from the time it comes to the notice of the offence”

In the light of the foregoing therefore a contract of employment between the Respondent and Appellant was concluded on the 2nd of April 2012 before its withdrawal on the 3rd of April. The Respondent had agreed to render service under the control of the employer in return for remuneration. It is because of this relationship that the Court finds the Arbitrator had jurisdiction to entertain this matter.

In the case of Monavis vs. Rhodesia Reduction Company Ltd. (1910) Buch AC 31 the Court held that;

“Now this Court has accepted the rule that when a contract has been reduced to writing the writing is in general, regarded as the exclusive memorial of the transaction and in a suit between the parties no evidence to prove its terms may be given save the document on secondary evidence of its contents, nor may the contents if such document be contradicted, altered, added or varied by parole evidence.”

In view of the explanation the offer that the Respondent signed was the transaction between the parties and could not be altered despite the fact that Appellant had not clarified some of the issues that had been raised by the Respondent.

R.H. Christie in his book – The Law of Contract in South Africa 3rd Edition stated that;

“One aspect of the rule that acceptance must be clear and unequivocal and ambiguous is that the acceptance must exactly correspond with the offer “Yes ------ but -------- does not signify agreement---------” Respondent signed the offer as proof of acceptance.

The Appellant in their submissions stated that the issues raised by the Respondent in the e-mail of 28th March 2012 altered the contract. However the contract was signed on the 2nd of April 2012. In the e-mail he was only seeking clarification as shown by the following questions.

“1. 	Other Fringe Benefits

Please confirm if I read correctly that free company housing will be provided. If so, may you kindly specify its size.

May you also please specify the vehicle body and type

Mobile communication – please specify if a mobile phone will also be provided. I am using a company phone which I will leave behind when I terminate my employment contract.”

On page 3 of the offer of employment the Appellant had also invited the Respondent to seek clarification as shown by the following words;

“Should you have any questions regarding any of the conditions laid down in this letter of appointment, please do not hesitate to contact the Directors who will discuss with you and give you an appropriate response.

Should the terms and conditions of employment be acceptable to you, kindly sign and return the office copy enclosed therein.”

The Respondent thus complied with both conditions and submitted the office copy to the CV People Africa (Pvt) Ltd.

After signing the contract the Respondent was prepared to render service to the Appellant but the later chose to withdraw this offer. In the circumstances therefore the Respondent is entitled to damages as stated by GUBBAY C.J. in the case of Gauntlet Security Services (Pvt) Ltd vs. Leonard 1997 (1) ZLR 583 when he stated that ;

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the pre-mature termination of his contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”

Munyaradzi Gwisai in his book “Labour and Employment Law in Zimbabwe” at page 128 also has this to say;

“The Courts have traditionally taken into account the period of time it would have taken a dismissed employee to find another job and allow him that periods salary as damages.”

The period of 24 months is reasonable considering the economic situation today.

In the light of the foregoing this Court finds that the appeal lacks merit.

Accordingly it is ordered that;

The appeal be and is hereby dismissed with costs.

Honey and Blanckenberg – Appellant’s legal practitioners

T.K. Hove and Partners – Respondent’s legal practitioners