Question Maisera v Rumikon Computers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/493/2013
HARARE, 16 OCTOBER, 2012
CASE NO. LC/H/779/2011
AND 31 JANUARY 2014
JUDGMENT NO. LC/H/493/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/493/2013

HARARE, 16 OCTOBER, 2012				CASE NO. LC/H/779/2011

AND 31ST JANUARY 2014

In the matter between

QUESTION MAISERA						-	Appellant

Versus

RUMIKON COMPUTERS						-	Respondent

Before The Honourable B.T. Chivizhe: J.

For The Appellant 	-	Mr Mavingidze (Legal Practitioner)

For The Respondent	-	Mr A. Marara (Legal Practitioner)

CHIVIZHE, J.

The appeal was noted against an arbitral award handed down on the 9th of November, 2011.  The Respondent also noted a cross-appeal against part of the award.  For the purpose of this judgment the Appellant is the employee and the Respondent the employer.

The background facts to the matter are as follows:

The Appellant was employed by the Respondent as Chief Executive Officer in August 2010.  The parties duly signed a contract of employment.  The Appellant’s submission before the Arbitrator was that on the 1st of June, 2011 he was summarily dismissed without notice by the Respondent.  He had been forced to vacate his office and surrender all the company properties on the same day.  The Respondent also demanded the motor vehicle that the Appellant had been using.  It was only through a provisional court order emanating from the High Court the Respondent was interdicted from repossessing the vehicle.  The Respondent submission before the Arbitrator was that the Appellant was not summarily dismissed.  It was Respondent’s contention that following a meeting held on 1 June 2011 where the Respondent’s Chairman had discussed the company’s poor performance and indicated his intentions to institute formal disciplinary proceedings against Appellant the Appellant then stopped reporting for work from the 2nd June, 2011.  On that basis it was Respondent’s contention Appellant had repudiated his contract of employment.  It was Respondent’s further submission that the Appellant had however unlawfully assumed ownership of the company vehicle he had been using. Following the award of the Provisional Order dated 14 June, 2011 there had been no final order granted.  The Appellant had however issued the motor vehicle with new registration plates.  Given the circumstances it was Respondent’s submission that the Appellant having repudiated his contract of employment waived his right to notice as provided under clause 9 of the contract of employment and was not entitled to any terminal benefits.

The Arbitrator after considering the submissions made before him and upon application of the applicable legal principles handed down an award in the following terms;

The dismissal of the claimant was unlawful.

The Respondent be and is hereby ordered to pay the claimant damages in lieu of reinstatement calculated from 1 June 2011 (being the date of wrongful/unlawful dismissal) up to 1 August 2011 (being the date claimant secured alternative employment)) as follows:

The sum of US$5 000.00 for salaries.

US$1 000.00 housing allowance.

US$500.00 entertainment allowance.

800 litres of fuel.

US$7 350 school fees allowance.

Both parties shall share the arbitration costs equally.

Each party shall bear its own costs.

Dissatisfied with the award the Appellant noted an appeal on the following

grounds;

The Honourable Arbitrator erred and misdirected himself on a point of law by failing to realize that Appellant was lawfully entitled to be paid his notice period on termination of his employment.  Both the contract of employment and the Labour Act [Chapter 28:01] provide that a notice period should be paid.

The Honourable Arbitrator erred and misdirected himself on a point of law by failing to order that Appellant was entitled to his severance consisting of six months salary and benefits in terms of clause 8(c) of the contract of employment.

The Honourable Arbitrator erred and misdirected himself on a point of law by failing to award Appellant cash in lieu of accrued vacation days and the medical aid cover for a year as stated in the contract of employment.

The Honourable Arbitrator erred and grossly misdirected himself on a point of law by failing to award the motor vehicle (at book value) to Appellant in terms of Clause 8(c) of his contract of employment.

The Honourable Arbitrator erred on a point of law by failing to award the 15% of the shareholding to Appellant in terms of clause 6 of the contract of employment.  The Arbitrator even failed to mention about the share scheme in his award despite the fact that it was raised by Appellant.

The Respondent also noted a cross-appeal based on the following grounds;

The Honourable Arbitrator grossly erred at law in finding that there was unlawful dismissal of the Respondent by the Appellant when the Respondent clearly deserted his position after he was advised that there was to be an audit into the affairs of the Company.

The Honourable Arbitrator erred at law and misdirected himself by ignoring clear proof that Respondent stopped attending to work after being questioned by the Appellant’s Chairman.

The Honourable Arbitrator erred at law and in fact by awarding the Respondent salary for two months when the Respondent repudiated his contract of employment by not coming to work.

The Honourable Arbitrator grossly erred in awarding the Respondent housing, entertainment and travel allowances when the Respondent was absent without leave.

The Arbitrator erred and by awarding the Respondent US$7 350 for school fees allowances when the Appellant has paid school fees for the Respondent children.

The Arbitrator erred in failing to take into account that the Respondent owed the Appellant money for fees he had caused Appellant to pay for his MBA in Switzerland without Board approval as stipulated in his contract of employment.

The Arbitrator erred in failing to take into account that the Respondent owed money to the Appellant after he had caused Appellant to pay school fees for his third child when the contract of employment stipulated that the Appellant would pay school fees for two children only.

There are in my view two issues only before the court.

Whether the Appellant was unlawfully dismissed by the Respondent.

If he was unlawfully dismissed what were his entitlements at law and under his contract of employment.

I shall address the issues seriatim.

The Arbitrator came to the conclusion that the Respondent having failed to disprove the Appellant’s assertions that he had been summarily dismissed following the meeting between him and the Respondent’s Chairman on 1st June, 2011 the Appellant was consequently unlawfully dismissed.  The Respondent’s submissions before this court is that the Arbitrator erred at law in finding that there was unlawful dismissal where the Respondent had in fact deserted his position following his meeting with the Respondent’s chairman at which meeting he was advised of the pending audit into the affairs of the company.  It is Respondent’s submissions that the Respondent had thereafter stopped reporting for work justifying Respondent’s claim of repudiating his contract of employment.

I am satisfied on perusal of the record that the Arbitrator clearly did not err when he reached his conclusion that Appellant was unlawfully dismissed.  It is clear that the issue as to whether there was unlawful dismissal or repudiation of contract of employment hinged on the meeting that took place on the 1st of June, 2011 between the Appellant and the Respondent’s Chairman.  It was as a result of that meeting that the Appellant stopped reporting for work.  The Respondent clearly in order to justify its claim of repudiation of contract would have needed to call for evidence of the Chairman before the Arbitrator.  The Respondent failed to do that and did not tender any explanation.  The Arbitrator was left with no option save to accept the Appellant’s version of events.  I have no reason to find otherwise.

Having come to the same conclusion as the Arbitrator the next issue to determine is what were the Appellant’s entitlements.

I shall address initially the claims by the Appellant himself.  The Appellant’s claims that he was entitled to notice – period as an entitlement both under the Labour Act [Cap 28:01] and in the contract of employment.  The Arbitrator found the Appellant having been unlawfully dismissed the issue of him been given notice of termination did not arise. I agree with that position.

The Appellant also claimed six months’ salary and benefits in terms of clause 8(c) of the contract of employment.  The Arbitrator found that clause 8(c) of the Appellant’s contract of employment would only apply had the Respondent terminated the Appellant’s contract of employment on notice.  As this was not the case in casu it was improper for the Appellant to seek to rely on that clause.  I agree entirely with the Arbitrator’s findings in respect of notice and clause 8(c) of the contract of employment.

The Appellant also claimed cash in lieu of accrued vacation days and medical aid cover for a year as provided under contract.  Again the same reasoning adopted by the Arbitrator would apply with respect to these claims.  Appellant could only rely on clause 8(c) of his contract of employment had the Respondent terminated the contract of employment on notice.  This was not the case in casu.  The Appellant therefore cannot seek to rely on clause 8(c) of his contract of employment.

The next issue is whether the Appellant was entitled to the motor vehicle, a Mercedes Benz C200.  The Arbitrator came to the conclusion that in the absence of any contractual entitlement to the motor-vehicle the Appellant had no right to claim the motor-vehicle.  I again agree entirely with that exposition.

Finally the Appellant also claims 15% of the shareholding in terms of clause 6 of the contract of employment.  He alleges that the Arbitrator failed to mention the share scheme in his award despite the fact that the Appellant raised it before him.  For the reasons that I have already alluded to above which reasons are the same as the Arbitrator the claim cannot stand.

The Respondent has also in its cross-appeal raised several claims.  I shall address these in turn.

The Respondent claims that the Appellant was not entitled to two months’ salary awarded to him.  The Arbitrator having found that the Appellant was unlawfully suspended was correct when he awarded the two months’ salary from the day of wrongful/unlawful dismissal to the date when the Appellant secured alternative employment.  The Appellant had a duty to mitigate his losses but having secured alternative employment within two months the Arbitrator was duty bound to make such an order.

The Respondent contends Appellant was also not entitled to housing, entertainment, travel allowances when he was absent without leave.

The court just as the Arbitrator has found that the Appellant did not repudiate his contract of employment.  Instead he was unlawfully dismissed.  In the circumstances the Arbitrator was bound to award him his salary and benefits for the period.

The Respondent also contends Arbitrator erred when he awarded Respondent US$7 350 for school fees allowances when the Respondent had paid school fees for the Appellant’s children.  The record shows that the Arbitrator in response to a query by Respondent on this aspect indicated that Respondent had not proved that it paid the school fees.  Although the record shows that the Respondent filed documents to prove payment of the school fees the issue was however not ventilated before me.  The position is the same with respect to the last two claims by the Respondent that the Appellant owed Respondent for fees paid for his MBA in Switzerland and also moneys paid for Appellant’s third child outside the terms of his contract of employment.  For that reason I would dismiss those claims.

In the circumstances it is the finding of the court that:

The appeal is dismissed.

The cross-appeal is also dismissed.

The Arbitral award handed down on the 9th of November, 2011 be and is hereby upheld.

Mutamangira Associates – Legal Practitioners for appellant

Madanhi, Mugadza& Company – Legal Practitioners for respondent